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WAR DEPARTMENT 
OFFICE OF THE JUDGE ADVOCATE GENERAL 



A DIGEST OF OPINIONS 

OF THE 

JUDGE ADVOCATES GENERAL 
OF THE ARMY 



1912 








WASHINGTON 

GOVERNMENT PRINTING OFFICE 

I9I7 






War Department, 

Document No. 412. 

Office of the Judge Advocate General. 



D. of D. 
SEP 20 1917 



v^ 



War Department, 
Office of the Chief of Staff, 

WasMngton, February 17, 1912. 
The following Digest of Opinions of the Judge Advocates General 
3f the Army, prepared under the direction of the Judge Advocate 
Greneral, United States Army, by Capt. Charles Roscoe Howland, 
Fwenty-first Infantry, Assistant to the Judge Advocate General, is 
published for the information of the Army and Organized MUitia of 
the United States. 
By order of the Secretary of War' 

Leonard Wood, 
Major General, Chief of Staff . 

3 



JUDGE ADVOCATES GENERAL OF THE ARMY. 



Name. 


From— 


To- 


Holt, Joseph ' 

Dunn, Wm. M 


Sept. 3, 1862 
Dec. 1, 1875 
Feb. J 8, 1881 
Jan. 3, 1895 
May 24, 1901 
Feb. 15, 1911 


Dee. 1,1875 
Jan. 22, 1881 
Jan. 3, 1895 
May 21, 1901 
Feb. 14, 1911 


Swaim, David G 

Lieber, G. Norman ^ 

Davis Geo. B 


Crowder, Enoch H 





1 Capt. J. F. Lee was appointed "Judge Advocate of the Army" under section 4 of the act of Marcli 
2, 1849, and served as such until September 3, 1862. 

« Gen. Lieber was "Acting Judge Advocate General" from July 25, 1884, to January 3, 189S. 



PEEFAOE. 



This Digest includes the opinions of the Judge Advocates General 
of the Army from September 3, 1862, to January 31, 1912, inclusive. 

Practically all opinions of general interest are presented. Those 
are omitted whose enunciated principles have been incorporated into 
the Regulations or into the Statute law. 

No opinion is presented which is known or believed to have been 
disapproved by the Secretary of War. 

The Subjects in the Digest are arranged alphabetically. 

The arrangement of the opinions on a Subject is set forth in a 
synopsis which precedes those opinions. 

As shown by the synopsis, the divisions of a Subject are indicated 
by Roman Numerals and the subdivisions bj^ other characters in the 
following order: 

subject. 

ROMAN NUMERALS thus: I 

CAPITAL LETTERS thus: A 

Arabic Numerals thus: 1 

Small Bold-Faced Letters thus: a 

Arabic Numerals in Parentheses thus: (1) 

Small Italic Letters in Parentheses thus: (a) 

Arabic Numerals in Brackets thus: [1] 

Small Italic Letters in Brackets thus: [a] 

CAPITAL LETTERS IN BRACKETS, thus: [A] 

Each paragraph of the text is preceded by the characters, arranged 

in order, which synoptically indicate the division and each subdivision 

of the Subject which includes the opinion printed in the paragraph. 

The opinions of the Judge Advocate General's Office are cited as 

follows: 

C. for Cards. 

P. for Letter Press Books. 

R. for Record Books. 

Many of the Subjects consist of cross references only. In the cross 

references where there is under a heading more than one reference to 

a Subject, there is as little repetition as possible of the characters 

which synoptically indicate the location of the desired opinion. 

Washington, D. C, Felruary 16^ 1912 

5 



DIGEST. 

ABANDONING CONTRACT. 

See Contracts XIV H; XXII to XXIII. 

ABROGATION. 

Of lease. See Claims VII C 3. 

ABOLISHMENT OF OFFICE. 

See Office II A 1; V A 7 e. 

ABSENCE FROM QUARTERS. 

See Absence II B 2. 

See A. W. XXXII A; LXII D. 

ABSENCE. 
I. WITH LEAVE. 

A. Not Duty Status Page 7 

B. Officers. 

1. Ordinary leaves. 

a. Indulgence not a right. 

b. Leave and duty status incompatible Page 8 

(1) Disability on leave not in line of duty. 

c. Authority to grant. 

(1) May extend. 

(2) May not give nunc pro tunc. 

(3) Chief of Engineers may not grant as department com- 

mander. 

d. Granted in terms of months and days. 

e. Leave order does not relieve from duty Page 9 

f. Staff officers must apply to War Department for one month or 

more. 

g. Extra leaves. 

(1) Professors at United States Military Academy. 

(2) Instructors at service schools. 

(a) Student officers Page 10 

(3) Officers on duty with civil government in Philippine 

Islands. 
h. Fail to sail on scheduled transport. 
1. Date of arrival in United States. 
k. Graduation leave interrupted by temporary duty. 
1. Relinquishment, express and implied. 

m. Rule for computing leave allowance Page 11 

(1) Suspension is not leave. 
n. Commutation of quarters on leave. 

2. Hunting leaves. 



ABSENCE I A. 7 

I. WITH LEAVE— Continued. 

C. Enlisted Men. 

1. Ordinary pass. 

a. Can not be used to cover desertion Page 12 

(1) Attempt to board departing ship while on pass. 

b. Overstaying pass while on shore leave. 

c. Duty status. See Absence I C 4 b. 

2. Hunting pass. 

3. Fishing pass. 

4. Furlough. 

a. Commander's discretion not subject to revision Page 13 

b. A pass for several days is a furlough. Pass and furlough dis- 

tinguished. 

c. Uniform not required. 

d. Employment. 

(1) By Quartermaster's Department. 

(2) In civil Ufe. 

e. Soldier returns after furlough has expired. 

(1) Commutation paid if delay excused. 

(2) Not paid if soldier has been discharged Page 14 

t. Service for retirement. 

(1) Furlough not counted. 

(2) In service beyond the seas furlough does count double. 

g. Not given to enable soldier to accept commission as scout officer. 
h. Return transportation on commercial liner charged against soldier. 

D. Nurse Corps. 

1. Leave not cumulative. 
n. WITHOUT LEAVE. 

A. Officers. 

1. Restrained by civil authority. 

2. Overstay absence with leave. 

B. Enlisted Men. 

1. Obligation to remain and to return to organization Page 15 

2. Thirty-second article of war refers to absence from post. 

3. From civil hospital. 

4. Restrained by force majeur. 

a. By civil authority. 

(1) Turned over to civil by military authorities. 

b. By disability. 

5. Soldier requests transportation back to post. 

6. Wliat is proper station. 

7. Restored to duty Page 16 

8. No service no pay. 

a. Less than one day not counted. 

b. Acquittal of desertion does not prevent forfeiture of pay. 

9. Time lost made good. 

a. In hands of civil authorities. 

10. Nunc pro tunc order does not change status. 

I A. Held, that an officer on leave of absence for more than 24 
hours or a soldier on furlough is on a status of absence with leave and 
so can not be regarded as occupying a status of duty. C. 26949, Jan. 
23, 1910. 

I B 1 a. A leave of absence is an indulgence which is or may be 
granted to an officer at the pleasure and in the discretion of a proper 



8 ABSENCE T B 1 b. 

military superior. Held, that as it is not a privilege created by law 
it can not for that reason ever be demanded as a matter of legal 
right.^ C. 13346, Dec. 8, 1903. 

I B 1 b. The status of leave of absence and that of duty are 
incompatible, and both can not exist at the same time in respect to 
the same person; nor is there an intermediate status, or connection, 
lying between them which partakes of some of the incidents of both. 
If one exists, the other necessarily ceases to exist. In a case in which 
an officer had been granted leave to visit the United States by a 
proper commanding general in the Philippine Islands, and, subse- 
quently was placed on a status of duty by the Secretary of War the 
superior of such commander, lield, that as both conditions could not 
exist together, one must survive and one must be destroyed. As 
between the two, it seems to admit of no doubt that the status 
created by the commanding general in the Philippine Islands must 
yield to that created by the Secretary of War. C. 20917, Jan. 12, 
1906; 23666, Sept. 21, 1908. 

I B 1 b (1). An officer was disabled while on leave. Held that 
his status was not one of duty, as disability, to be pensionable, must 
have been incurred in line of duty. C. 25634, Oct. 1, 1909; 19323, 
Feb. 24, 1906. 

I B 1 c (1). A post commander granted 10 days' leave of absence 
to an officer under his command which was in fact, though not in 
form, an extension of a leave already granted by a higher com- 
mander; held, that the authority of a commanding officer of a post 
in the matter of leaves of absence to officers is fully set forth in 
(paragraph 49) the Army Regulations (1910) and does not exteiid 
to the granting of a leave in continuation of one previously granted 
by superior authority; such power being restricted by regulation to 
the officer by whom the original leave was granted or, when the 
indulgence asked for is beyond his power to grant, to the next higher 
commander. 0. 17491, Feb. 3, 1905; 17440, Jan. 24, 1905. 

IB 1 c (2). The Army Regulations vest in certain military com- 
manders the power to grant leaves of absence; Tield, that the authority 
so vested in the several classes of military commanders is one which, 
from its nature, is operative in futuro, and leaves which they are 
authorized to grant are to have prospective operation. None of the 
regulations above referred to confer power to act retrospectively, or 
to grant a leave as of a prior date, or to cause a leave to become 
operative as to time already passed. Such an undertaking, of which 
that described in the foregoing statement of facts is an example, 
involves a resort to nu7ic pro tunc procedure, which has no applica- 
tion in the execution of regulations respecting leaves of absence; 
which, from the nature of the case, can only operate in the future, 
a 17440, Jan. 24, 1905; 21294, Mar. 13, 1907. 

IB 1 c (3). Held, that the Chief of Engineers was not a "depart- 
ment commander" and was therefore without authority to grant 
leaves of absence to officers stationed at Willets Point, N. Y. U. 15, 
July 10, 1894. 

I B 1 d. Paragraj)h (58) Army Regulations (1910) provides that 
"leaves of absence will be granted in terms of months and days." 
Held, where a leave' for a certain number of days less than a month 

' Leave accrued to a volunteer officer can not be used by him if appointed to the 
Regular Army. VIII Comp. Dec. 192; Sept. 25, 1901. 



ABSENCE I B 1 e. 9 

is granted, and is subsequently extended for a specific number of 
days, that there is no authority for converting the same into months, 
the operation of the leave being measured in terms of days. G. 19284, 
May 31, 1906. 

I B 1 e. An order granting leave of absence to an officer stationed 
at a military post does not operate propria vigor e to relieve the officer 
from duty at the post, which is a matter falling within the jurisdic- 
tion of the post commander, whose duty it is to see that a successor 
is appointed to take over the money and property accountability of 
the officer, if he has any, and, where special duties are imposed in 
orders of the post or department commanders, that an officer has 
been designated to relieve him. C. 18756, Nov. 8, 1905. 

I B 1 f. Paragraph (51) Army Regulations (1910) requires that 
appHcations for leaves of absence for staff officers for more than one 
month shall be forwarded for the action of the War Department. 
The administrative principle which underlies the regulation is this : If 
a staff officer is to be granted leave for more than one month it may 
be necessary to replace him, either permanently or temporarily, by 
another, and this fact gives rise to a number of considerations, as to 
which the head of the staff department to which the officer belongs 
should be consulted; another officer may not be available at the 
moment; the tour of the officer who desires leave may be approaching 
its close; he may be engaged in the execution of most important 
duties, and there may be difficulty in finding a cornpetent line officer 
to replace him; if he is a bonded officer it may be difficult, and in some 
cases impossible, to replace him by an officer who is not bonded. 
These are some of the matters in respect to which the opinion of the 
head of the staff department has to be ascertained before it can be 
determined whether the indulgence can be granted without detri- 
ment to the public interest. This view has regulated the practice of 
the department for nearly 70 years. 0. 17037, Oct. 21, 1904. 

IB 1 g (1). Under section 1330, R. S., professors, assistant 
professors, instructors, and other officers of the Military Academy 
may be granted leaves of absence by the superintendent under 
regulations prescribed by the Secretary of War for the entire period 
of the suspension of the ordinary academic studies. Held, that 
such leave, if not taken during the suspension of the ordinary 
academic studies, at the time of the summer encampment, may be 
taken by such officers at such other time during the academic year 
as their services may be spared for that purpose. Held, further, that 
it must be taken during the leave year in which it accrues, as such 
leave is not cumulative. C. 27492, Nov. 14, 1910. 

I B 1 g (2). The act of March 23, 1910 (36 Stat. 244), granting 
leaves of absence to instructors in the several service schools during 
remission of academic duties is conceived in the same sense as section 
1330 of the Revised Statutes, which grants similar leave, without 
deduction of pay or allowances, to the corresponding class of officers 
at the Military Academy. Held that the operation of the act extends 
to the officers composing the "academic staff" as distinguished from 
the "military staff" of the several educational institutions established 
by statute or regulation for the instruction of commissioned officers 
or enlisted men (C. 17388, May 9, 1910), but does not include student 
officers nor officers on duty with organizations composing the garri- 
sons doing post duty only. C. 17388, May 3 and Dec. 20, 1910; 
18085, June 27, 1911. 



10 ABSENCE I B 1 g (2) (a). 

Held also that veterinarians on duty as instructors at the service 
schools are entitled to the benefit of the act. 0. 17388, May 26, 1910. 

I B 1 g (2) (a). Held, in view of the peremptory requirements of 
section 1265 of the Revised Statutes, that student officers relieved 
from duty at the War College and the several service schools can not 
be placed on an extra-leave status with full pay from the date of their 
graduation until the 31st of August following, unless the order reliev- 
ing such officers contains the requirement that the delays in reporting 
for duty, therein authorized, are for the convenience of the Govern- 
ment.^ C. 18286, July 12, 1905. 

I B 1 g (3). An officer of the Army on detached service with the 
civil government in the Philippine Islands was granted a vacation by 
that Government. Held, that as the officer was serving by authority 
of law with the Philippine Government, he was not subject to Army 
control during his incumbency of that position, and his status in re- 
spect to duty is not determined by the Army authorities, by whom 
he should be regarded as occupying a status of duty during the entire 
period of his detachment as an inspector of Philippine Constabulary. 

The mere fact that he was permitted to be absent from his post of 
duty in the Army by the proper authority did not, in the opinion of 
this office, create a status of leave of absence of which the department 
should take official cognizance. C. 22JfiO, Nov. 21, 1907; 2/^236, Dec. 
21 and Dec. 23, 1908. 

I B 1 h. Where an officer on leave of absence is unable to reach a 
port of sailing before the departure of a particular transport and is 
assigned to a transport sailing at a subsequent date, his leave status 
may be extended, or he may be placed on temporary duty, or upon a 
status of awaiting orders for the convenience of the Government, but 
the status last named is not demandable as of right, as its creation 
rests in the discretion of the Secretary of War, upon a showing of facts 
sufficient to warrant its establishment in a particular case. C. 23030, 
Sept. 30, 1906; 27346, Oct. 12, 1910. 

I B 1 i. The date of arrival in the United States, within the mean- 
ing of the act of March 2, 1901 (31 Stat. 902), is the date when the 
transport has reached the terminus of its voyage ; that is, when it has 
reached the dock where the passengers and cargo can be discharged. 
a 18286, July 12, 1905; 25592, Sept. 20, 1909. 

I B 1 k. The act of December 20, 1886 (24 Stat. 351), authorizes 
a graduation leave in favor of those cadets who graduate from the 
Military Academy and who are commissioned second lieutenants in 
the Army. By uniform practice such leaves have begun immediately 
after graduation and continued three months. Held, in accordance 
with the rule which is applied in like cases to other officers when on 
regular leaves of absence, that if an officer while on graduation leave 
should be ordered to temporary duty, the order should recite that the 
officer's leave is temporarily suspended and that on its completion he 
will revert to a leave status. C. 18286, July 12, 1905; 133A6, Apr. 
17, 1908. > ^ > ^ ^ > F 

I B 1 1. The relinquishment of a leave of absence may be express 
or implied. Held that it is express when made in the form of a written 
instrument, to the completion of which an acceptance of such relin- 
quishment by proper superior authority is necessary, and implied 
when the officer reports at his proper post for duty or at any other 

1 See Cir. No. 35, W. D., July 26, 1905. 



ABSENCE I B 1 m. 11 

post designated for that purpose by proper superior authority on a 
date previous to the expiration of his leave. C. 273 A6, Oct. 12, 1910. 

I B 1 m. Held that when an officer is granted a leave of absence 
under the act of July 29, 1876 (19 Stat. 102), it shall be charged to 
the year or years in which it first accrued in order of priority of date, 
and any balance of accrued leave remaining shall stand to his credit 
for future leaves; provided no credit shall stand longer than four 
years from date of accruing.^ P. 44., 271, Dec. 18, 1890. 

I B 1 m (1). Held, in estimating the period of the leave of 
absence to which a certain officer would be entitled under the pro- 
visions of section 1265, R. S., and the act of July 29, 1876, without 
incurring a deduction from his pay, that a period during which 
he was permitted to be absent from his post, while under a sen- 
tence of suspension from rank, was not properly to be taken into 
account; such absence not being an absence of an "officer on duty" 
in the sense of the act of 1876, but an absence pending the execution 
of a sentence which, during its term, separated the officer from all 
duty. R. 42, 306, May, 1879. 

I B 1 n. The provision of the act of July 29, 1876, to the effect 
that officers shall enjoy the leaves of absence accorded by the act, 
"without deduction of pay or allowance," Jield to entitle such officers 
as are drawing commutation of quarters while on duty at a station to 
receive their allowance for quarters, as well as their full pay for and 
during the period of absence. The word "allowance" must mean 
something — must mean some emolument distinct from pay. R. 4^, 
277, Apr. 7, 1880; C. 13863, Dec. 24, 1902, and Jan. 21, 1903. 

I B 2. The Army Regulations ^ provide that under certain condi- 
tions "permission to hunt will not be considered as a leave of absence." 
Circular No. 35,War Department, July 26, 1905, published a decision 
of the Secretary of War to tlie effect that all authorized absence from 
duty except on account of sickness or wounds counts as absence with 
leave unless shown to be for the convenience of the Government. 
Held that although hunting leaves have not been looked upon as 
ordinary leaves, but rather expeditions for the special improvement 
of the officer and for the acquisition of topographical information for 
the Government, they must, since the publishing of the. above circular, 
be considered as ordinary leaves unless it is shown in each specific 
permission that the leave to hunt is for the convenience of the 
Government. C. 18487, Aug. 29, 1905. 

I C 1. By custom a soldier is permitted, when not required for 
specific duties, to be absent for a brief period of time by authority of 
his commanding officer. Such a pass generally recites that it author- 
izes the man to go to a particular place, and also that he may be absent 
until a certain specified hour, but whether it recites this or not it is 
always given for a lawful purpose only and does not per se remove 
the soldier from a duty status. (C. 23666-D, Sept. 21, 1909; 24393, 
May 7 and June 1 , 1910; 26949, June 23, 1910.) Held that it answers a 
double purpose — first, it is authority in the post or camp for a tempo- 
rary absence of a member of the garrison; second, it operates to pro- 
tect the man against molestation while outside the limits of his post 
so long as he does not violate the express or implied conditions 
imposed by the authority who granted the pass. No vested rights 

' See General Orders, No. 77, War Department, series 1886. 
2 Par. 65, Ed. 1910, Army Regulations. 



12 ABSENCE I C 1 a. 

pass in the operation of such an instrument. It can be revoked by the 
authority which granted it. It also ceases to run as a protection 
against molestation or apprehension so soon as the soldier violates the 
conditions of the pass. C. 1397, Aug. 5, 1908 ^• 23666, Dec. 8, 1909, 
arid Feb. 3, 1911. Held, further, that a soldier who is absent on 
pass which authorizes his absence until a certain hour can not 
afterwards rely on his pass as authority for being absent at a later 
hour. Held also that a soldier so absent on a pass which authorizes 
him to be absent until a certain hour, which limit of time permits of a 
visit to a near-by town, viz, A, can not rely on his pass as a protection 
at any time before that fixed for its termination, should he be appre- 
hended at a point more distant, viz, B, from his station than A, and 
while speeding away as rapidly as possible, as the pass does not cover 
his absence under those conditions. 0. 1397, Aug. 5, 1908; 2658, Oct. 
15, 1896; 29211, Oct. 31, 1911. 

I C 1 a. A soldier is on pass. The evidence is conclusive that he is 
using the pass for the purpose of separating himself from the service 
with the intention of not returning thereto. Held that the pass does 
not protect him from apprehension as a deserter, as the pass was not 
granted for an unlawful use and can not be so used. O. 1397, Aug. 5, 
1908. 

I C 1 a (1). Should a soldier obtain a pass good until 4 o'clock 
p. m., and at 12 o'clock noon board and take passage on a steamer 
which is scheduled to sail at 1 o'clock p. m. for a foreign and distant 
point, held that he can not rely on his pass for protection should he 
be arrested as a deserter just before the steamer sails. C. 1397, 
Aug. 5, 1908. 

I C 1 b. An enlisted man en route by transport from Manila to San 
Francisco overstayed his pass at Nagasaki, Japan, and arrived at the 
dock after the transport had sailed. He imrnediately reported to the 
depot quartermaster at that station, by whom he was quartered and 
subsisted until he was placed on board the next United States trans- 
port bound for San Francisco. Held that at the expiration of his 
authorized time on pass his status became that of absence without 
leave, and that his absence without leave terminated when he reported 
to the depot quartermaster at the place from which he had gone on 
pass and was given a status by him awaiting transportation. C. 
20006, July 9, 1906; 29211, Oct. 31, 1911. 

I C 2. The "hunting pass" authorizes an absence of more than 24 
hours from the post, and is given upon the assumption that the 
soldier while on this pass is actually engaged in hunting game, thereby 
acquiring skill in the use of fii-earms. Held that such a pass does not 
permit a soldier to go to a point at a considerable distance from his 
post, and that while on such a pass he is not removed from a status 
of duty. C. 23666-1, Feb. 3, 1911. 

I C 3. Enlisted men of the Coast Artillery, because of their duties 
in connection with mine planting, are required to understand the 
handling of steam launches and other small boats. Held, that a ' ' fish- 
ing pass" may be given to a Coast Artillery man which will permit 
him to be absent for more than 24 hours on a duty status, but will not 
permit him to go to a considerable distance " from his post. C. 
23666-1, Feb. 3,1911. 

1 See Circular 66, War Department, 1908, which publishes this opinion. 



ABSENCE I C 4 a. 13 

I C 4 a. The eleventh article of war does not apply to a large 
number of cases in which the applicant is not under the immediate 
command and control of the regimental commander; these are pro- 
vided for in paragraphs 105 to 112, inclusive Army Regulations of 
1908 (106 to 113, A. R., 1910 ed.); where, however, the issue of the 
furlough falls, under law and regulation, within the exclusive juris- 
diction of the regimental commander, his exercise of discretion in 
respect thereto is not subject to revision by higher authority. But 
where an application is, for any reason, Brought within the juris- 
diction of a higher commander, on account of the length of the fur- 
lough asked for, or because the applicant desires to leave the depart- 
ment in which he is stationed, or otherwise, the application should go 
to the higher commander to whom it is addressed with such expres- 
sion of opinion on the part of the regimental commander as is required 
by paragraph 791 of the Army Regulations (799, A. R., 1910 ed.). 
C. 15841, Jan. 30, 1904. 

I C 4 b. The terms ''furlough" and ''pass" are not synonymous. 
It is an essential incident in the operation of a pass that the bene- 
ficiary of the permit is not removed from the list of men "present for 
duty," his permission to be absent for a short time being of such a 
character as not to interfere with the performance of the more im- 
portant duties for which he is expected to hold himself in constant 
readiness. In determining what limits of time and place shall be 
regarded as falling within the operation of a pass, the foregoing con- 
ditions should be borne in mind. The soldier should be carried on the 
rolls and returns as present for duty, the operation of the pass or other 
form of permission to be absent should be restricted to the vicinity 
of the post, and its duration should not extend over a period of 24 
hours. The character of the instrument in the operation of which 
the soldier absents himself should, therefore, be determined by the 
duration of the absence and the status created, rather than by its 
name. If, for example, an instrument be called a "pass" which 
authorizes a soldier to be absent for several days and to visit a point 
at a considerable distance from the station of his company, it should 
be regarded as a "furlough," although it may be in lorm a "pass." 
a 24293, Oct. 4, 1910; 23666, Sept. 8, 1910; 15841, Jan. 29, 1904. 

I C 4 c. There is no regulation requiring an enlisted man to wear 
his uniform while on furlough. 0. 5408, Nov. 30, 1898. 

I C 4 d (1). Held, that there is no statute which precludes a soldier 
on furlough from being employed by the Quartermaster's Department. 
C. 2607, Sept. 16, 1896, and May 6, 1908. 

I C 4 d (2). Held, that an enlisted man on furlough may accept 
employment in civil life. C. 5005, Sept. 20, 1898; 5408, Nov. 30, 
1898. 

IC4e(l). A soldier on furlough appUed for transportation in 
sufiicient time so that he could report at his station on or before the 
last day of his furlough. Due to the delay of the Government, trans- 

Eortation was not furnished promptly. He did not report until after 
is furlough had expired. Held, that the period of time between the 
last day of his furlough and the date of his actual reporting for duty 
at the station of his company should be excused by proper authority. 
Held further, that if his delay should be excused he would not forfeit 



14 ABSENCE I C 4 e (2). 

the commutation of rations due.^ C. 3988, May 13, 1898; 4758, 
Aug. 10, 1898; 7211, Oct. 26, 1899; 20203, Aug. 11, 1906. _ _ 

I C 4 e (2). Held that a delay in reporting at the expiration ol a 
soldier's furlough may not be excused after the soldier has been dis- 
charged, a 7020, Sept. 13, 1899. . , x. 

I C 4 f (1) . Held that the time spent by an enlisted man on lurlough 
should not be deducted in computing the 30 years' service necessary 
for retirement. C. 8696, Aug. 4, 1900. . 

I C 4 f (2) . Held that a soldier serving an enlistment m the posses- 
sions beyond the seas can not count absence on furlough double for 
the purpose of retirement. C. 26995, July 29, 1910. 

I C 4 g. Held that furloughs for an indefinitely long period of time 
may not be granted to enlisted men in order that they may, during 
such furloughed period, accept commissions as officers of PhiUppine 
Scouts and serve as such. C. 10843, July 12, 1901. 

I C 4 h. An enlisted man on furlough in the United States from one 
of the possessions lying beyond the seas reported at a post and 
requested return transportation to his station. He was given an 
order for transportation on a commercial liner. Held that such 
transportation would be a proper charge against the soldier's pay, 
and that the post commander's order would not properly carry with 
it transportation at the expense of the Government in such a case. C. 
27100, Aug. 1, 1910. 

1 D. Section 19 of the act of February 2, 1901, provides inter alia 
that nurses "may be granted leaves of absence for thirty days, with 
pay, for each calendar year." (31 Stat. 751.) Held that nurses ap- 
pointed under the above act are a component part of the United 
States Army and are not civilian employees under contract (C. 10160, 
Apr. 5, 1901); and that they may not be granted cumulative leaves. 
C. 10160, May 31, 1902. 

II A 1 . An officer of the Army in the hands of the civil authorities 
was convicted by the civil courts. Held that he was absent without 
leave. ^ Held further, in the event of an appeal, that the disposition 
of the case should be awaited before it could be determined whether 
his absence was excused ^ or unavoidable.^ C. 17667, June 19, 1905. 

II A 2. In view of the requirement of section 1265 of the Revised 
Statutes, that an officer absent without leave shall "forfeit all pay and 
allowances unless the absence be excused as unavoidable "; Jield that 
the power to decide whether the absence of an officer, in excess of a 
leave previously granted, is, or is not, to be excused as unavoidable, 
vests, by reasonable implication, in the officer who is empowered by 
regulations to grant the leave which, for some reasons, has been over- 
stayed, as an incident of his authority to grant leaves of absence to offi- 
cers under his command. From this it reasonably follows that, if the 
absence be in excess of a particular commander's power in the premises, 
the power to excuse passes to the next higher commander, and the dis- 
cretion created by the statute must be exercised by him, and his con- 
clusions as to its character, as avoidable or unavoidable, are final and, 

' See V. Comp. Dec, 941, for case of soldier granted furlough in United States until 
his regiment should arrive from the Philippines. 

2 See Dodge v. U. S., 33 Ct. Cls., 28. 

' An oflficer's absence without leave may be excused. (See Smith v. U. S., 23 Ct. 
Cls., 452, Nov. 5, 1888.) 
♦ See XI Comp. Dec, 659, Apr. 29, 1905, and 755, June 14, 1905. 



ABSENCE II B 1. 15 

unless appealed from, are not subject to review by higher authority.* 
G. 2076U, Dec. U, 1906. 

II B 1 . The articles of war which prescribe the duties of the soldier 
require him not only to remain habitually with the organization of 
which he is a member but, when absent therefrom witliout authority, 
for any cause, to endeavor constantly to return to his duty, for, in the 
absence of such endeavor, the mere lapse of time operates to establish 
that animus non revertendi which, coupled with unauthorized absence, 
causes it to ripen into the offense of desertion. C. 12524, Avr. 30, 
1902; 1397, June 20, 1908; 3694, Jan. 4, 1910. 

II B 2. An unauthorized absence from the quarters only, as from 
11 p. m. inspection, held not properly chargeable under the 32d 
Article. This article contemplates an absence from the soldier's 
"troop, battery, company, or detachment" — an absence from the 
post or command.2 P. 47, 133, May, 1891; 49, 100, and 171, Sept., 1891. 

II B 3. A soldier undergoing treatment in hospital absented 
himself without leave and, mstead of reporting for duty with his 
company at Jacksonville, Fla., went to Jonesville, Va., where he was 
under the care of a local physician. Held that the status of absence 
without leave, thus established, was not terminated or interrupted 
by his sickness at Jonesville, Va., but that the status of absence 
without leave continued until the soldier's muster out of the Volunteer 
service. 0. 9786, Feb. 8, 1901; 12464, June 8, 1902; 15942, Mar. 
17, 1904. 

II B 4 a. Where a soldier absent with leave is arrested by the 
civil authorities, tried, and convicted and, due to the restraint so 
imposed, fails to report at the expiration of his furlough, or pass, he 
passes to the status of absence without leave from the date of such 
expiration. C. 18764, June 21, 1910; 3694, Jan. 4, 1910; 12524, 
Apr. 30, 1902. Where a soldier is held by the civil authorities, the 
holding should be regarded, if he be not convicted of an offense, as 
duress ; if convicted of such offense the duress is held to have been due 
to the fault of the soldier. C. 16966, Mar. 31, 1909. 

II B 4 a (1). When a soldier is turned over to the civil authori- 
ties on service of the proper process, held that prosecution will not 
lie for absence without leave during the time that he is away being 
tried or serving sentence. C. I8O4I, Sept. 7, 1905. 

II B 4 b. An officer or soldier while absent without leave incurs a 
disability which prevents his return to duty. Held that his status of 
absence without leave is not changed. C. 20974, Nov. 2, 1908. 

II B 5. A soldier absent without leave who reports to a quarter- 
master for transportation back to his post does not by such report 
change his status as an absentee without leave. C. 11778, Dec. 19, 
1901; 12967, July 21, 1902. 

II B 6. Where expense is incurred in transporting a soldier absent 
without authority to his proper station, held that the proper station 
of a soldier is that at which his company or detachment is serving. 
The station of a soldier so returned may be changed by the War 
Department, in which case the new station so assigned is the proper 
station of the soldier within the meaning of the regulations. C. 17775, 
Apr. 4, 1905. 

1 Cir. No. 5, War Dept., 1905. 

^ Capture by the enemy while absent without leave gives a soldier a duty status. 
Vol. Ill, Digest 2d Comp. Dec, p. 9, Jan. 26, 1888. 



16 ABSENCE n B 1. 

II B 7. Where an officer^ or soldier on his return from an unau- 
thorized absence is, in consequence of his report of the facts and 
circumstances of such absence, not proceeded against by his proper 
commander for the mihtary offense involved, but is by the latter 
placed upon full duty, such action, under the general custom of the 
service, may be pleaded as a good defense, if the officer or soldier be 
subsequently brought to trial for the unauthorized absence. B. 2, 
376, and 391, May, 1863. 

II B 8 a. An enlisted man forfeits his pay and allowances dur- 
ing the period of an absence without leave, as provided in Army 
Regulations. During such absence he renders no service, and there- 
fore earns neither pay nor allowances. C. 12168, Mar. 10, 1902; 
3694, July 9, 1910. The forfeiture is thus by operation of law, and 
accrues independently of the result of a trial for the military offense 
involved in the unauthorized absence. One of the purposes of the 
muster and pay rolls is to show what service the soldier renders, 
and if they show that he has rendered none during a particular period 
by reason of an absence without leave, he is not entitled to pay and 
allowances during such period.^ P. 36, 303, Nov., 1889; 67, 240, 
Jan., 1893; C. 1494, June, 1895. For an absence without leave pi 
less than a day the soldier may, of course, be tried by court-martial 
and sentenced to suffer a forfeiture, but such absence should not be 
noted on the muster and pay rolls. P. 47, 399, June, 1891; C. 12577, 
June 17, 1902. The pay so forfeited should cover the entire period 
of his absence without leave. C. 12967, July 15, 1902; 13808, Dec. 16, 
1902; 17492, Feb. 3, 1905; 17768, Apr. 1, 1905; 18934, Dec. 28, 1905. 

II B 8 b. A soldier who had been absent without leave from March 
7 to August 5, 1892, was tried for desertion and acquitted, and was 
not convicted of absence without leave. Held, that so far as any mili- 
tary offense is concerned liis record is, as to this matter, absolutely 
clean ; but his record shows that he was guilty of a breach of contract 
in failing to furnish the services he had contracted to furnish, and this 
failure was caused by his being absent without authority. That was 
a fact, and the rolls, the object of which is to give the facts with refer- 
ence to this contract, would be false if they did not show his failure 
to earn his pay, by reason of breach of contract by absence without 
authority. This indicates his status in this respect. C. 14^4, June 
28, 1895. 

II B 9. Under the act of May 11, 1908 (35 Stat. 109), an enlisted 
man who has absented himself without leave in an enlistment entered 
into subsequent to the approval of that act will be required to make 
good time so lost. Held, however, that for an enlistment prior to date 
of approval of that act he can not be required to make good such 
absence except as provided in the forty-eighth article of war,^ but the 
period of absence will not be regarded in the computation of continu- 
ous service in the operation of the act of May 11, 1908 (35 Stat. 110). 
C. 18438, June 24, 1908. 

II B 9 a. A soldier was arrested, tried, convicted, and held to 
serve sentence of civil authorities. Held, that he was absent without 
leave, but could not be held to make the time good. C. 16966, Oct. 
3, 1904; 16423, Aug. 3, 1905. 

II B 10. An officer overstayed a leave of absence. A nunc pro 
tunc order was issued purporting to grant him a leave of absence for 

1 An absence without leave by an officer is laid under the sixty-second article of war. 
2U. S. V. Landers, 92 U. S., 77, 79; also 12 Comp. Dec, 328. 
no Comp. Dec, 333, Oct. 9, 1903. 



r 



ABSENCE WITH LEAVE — ACCOUNTABILITY. 17 

the period overstayed. Held, that such order did not change his 

status. C. 17U0, Jan. 25, 1905; 19077, June 20, 1906; 20764, Dec. 
12, 1906; 17U0, Aug. 28, 1907. 

ABSENCE WITH LEAVE. 

See Absence I to II. 

Arrest of officer or soldier See Articles of War LIX I 2. 

Civilian employees See Civilian employees I to II, 

Female nurses See Army I G 3 d (6) (a) [2]. 

Graduation leave See Army I D 6. 

Medical attendance during See Claims VIII. 

Officer, muster-out of See Volunteer Army IV D 1 a (2) (a). 

Quarters and heat and light See Pay and allowances II A 1 c (6). 

Medical Reserve Corps officer See Army I G 3 d (3) (c) [2]. 

Muster-out during See Volunteer Army IV D 1 a (3) to (5). 

ABSENCE WITHOUT LEAVE. 

See Absence II to III. 

See Articles op War XXXII A to C. 

Civil authorities in hands of. See Enlistment I B 2 b. 

Deserter convicted of See Desertion V B 4. 

Evidence of. See Discipline XI A 17 a (2) (a) [1] [e] [A]. 

Medical attendance on See Claims VIII. 

Muster-out during See Volunteer Army IV D 1 a (4) (6). 

Pay and allowances while on See Desertion XIV A 1. 

Pay and allowances I C 2; II A 3 a 
(2); III C 2 b. 

Relation to desertion See Desertion I A to E. 

Status after muster-out of organization See Volunteer Army IV C 1 b. 

United States Volunteers. 
Stoppage of pay on account of See Desertion V D 1 b. 

ACCEPTANCE. 

Appointment, original See Office III A 6 to 7; B 3 a (1). 

Appointment, by volunteer See Office V A 2. 

Appointment, how affects pay See Pay and allowances I B 1. 

bU. See Contracts VI F 2; XI A; XI D 3; H; 

XVI B. 

Bond See Bonds I M 1; III B; IV K; N. 

Claim, settlement of. See Claims I. 

Deed See Public property II A 3. 

Flag See Flag V. 

Gift to United States See Appropriations VII. 

Nunc pro tunc of resignation See Civilian employees XI A 1. 

Pardon See Pardon II. 

Promotion See Office III A 7 to 8; B 5 to 6. 

Rent from assignee See Public property VII B 1 a. 

Resignation See Office IV D 1; 5 to 6. 

Resignation for good of service See Office IV D 6. 

Right of way See Public property VI B 3. 

Service as soldier See Volunteer Army II B 1 b. 

Surety See Bonds V A. 

Vacates office See Office IV A to B ; V A 7 a. 

ACCOMPLICE. 
Evidence by See Discipline XV F 4. 

ACCOUNTABILITY. 

For public property See Public property I F to G. 

Governor, for public property See Militia IX D. 

93673=— 17 — -2 



18 ACCEETIONS TO LAND ACTIVE LIST. 

ACCRETIONS TO LAND. 

See Public property I D 1. 

ACCUSED. 

See DisciTLiNE V A to 1 1; II D 3 to 9. 

Arraignment of. See Discipline IX E 1 to 5 b. 

Charges, copy of to See Discipline II E. 

Copy of record - See Articles of war CXIX A. 

Counsel, right to See Command V A 5; 

Discipline XV B. 

Court of inquiry See Articles op war CXIX A to B ; CXX 

AtoB.CXXIA. 

Criminates himself See Discipline V B; B 1. 

Escape of during trial ' See Discipline VIII H 2; XVII A 4 c. 

Evidence by See Discipline XI A 14 a; b; b (1). 

Insanity, evidence of. See Discipline XI Alia. 

Jurisdiction over by general court-martial.. .See Discipline VIII G 1 a; b; c (1). 

Revision of record See Discipline IX N 4. 

Statement by See Discipline IV C 2 a (1 ); L; V HI to 5; 

IX II to 2, XV F 6. 

Statement, inconsistent with plea See Discipline IX E 5 a (2). 

Wife as witness See Discipline X B 1 ; la. 

Witnesses, right to See Discipline X D ; D 1. 

Witnesses, right to be confronted with See Articles of war XCI H. 

ACCUSER. 

A s summary court officer See Discipline XVI E 5. 

As trial judge advocate See Discipline III C 2 c (1) to (3). 

Commanding officer as See Discipline XVI C. 

How determined See Articles of war LXXII I 1 to 4. 

ACQUITTAL. 

Deserter See Desertion V E 1 ; 2 ; XT; XIV A 6. 

Discharge without honor after, not author- See Discharge III B 4. 

ized. 

Drunkenness See Discipline XII A 9 a. 

Effect of See Discipline XII I 1; XVIII Big. 

Forfeitures after See Pay and allowances I C 2; III C 2 b. 

Post exchange officer charged with embezzle- See Government agencies II 13 5. 

ment of fund. 

Belease after See Discipline XIV E 9 n (1). 

Responsibility for public property See Desertion XIX A. 

ACTION BY GENERAL COURT-MARTIAL. 

See Discipline XII A to F. 
ACT OF GOD. 

See Contracts X C. 
ACTIVE DUTY. 

See Retirement I K to L. 
ACTIVE LIST. 
Retired officer not on , See Retirement I K 4 d. 



ACTIVE SERVICE AFFIRM ATIOIST. 19 

ACTIVE SERVICE. 

See Retirement I K 1. 
In Marine Corps by enlisted man counts for See Retirement II A 2. 
retirement. 

ADDITIONAL CHARGE. 

See Articles of war LXXXIV B. 
ADDITIONAL PAYMENTS. 

See Contracts XLI. 
ADDITIONAL TIME. 

See Contracts VII J 2. 
ADJOURNMENT. 
Of general court martial See Discipline IX L 1 ; 2. 

ADJUTANT GENERAL'S DEPARTMENT. 

Duty in case of disapproval of deserter's 

conviction See Desertion XIV A 5. 

Eligibility of officers to command See Command I A 1. 

The Adjutant General is a Chief of Corps.. See Insignia of Merit II H 1. 
The Adjutant General's office, duties of See Army I G 3 a (2). 

ADJUTANTS GENERAL OF STATES. 

See Militia III G. 

Payment of See Militia XI A. 

Penalty envelopes, use of See Communications II A 4. 

ADMINISTRATIVE STAFF. 

See Army I G 3 a to b. 
ADMIRALTY LIEN. 

See Claims VI F. 

ADMONITION. 

By commanding officer See Discipline XVII A 2. 

ADVERTISEMENT. 

By Quartermaster's Department See Laws I B 5. 

Contracts by See Contracts III to VI; VI A; E; 1; L. 

Exception to rule requiring ; See Contracts VII to VIII. 

ADVISING DESERTION. 

See Articles of War LI A. 
AFFIRMATION. 
By member of General Court Martial See Articles of War LXXXIV A. 



20 AGE ALIEN I. 

AGE. 

Candidate for commission See Office III A 1 b (2); c (3). 

Limit for enlistment See Enlistment I B 1 to 2; D 2 to 3. 

Minor, how shown .....See Discharge XII B 1; 2. 

AGENT. 

Acts of, bind surety See Bonds V D. 

Service of process on See BoNps V G. 

ALASKA. 

See Territories III to IV. 

Cadets from See Army I D 1 a (2) (c). 

Discharge without honor in See Army I G 3 b (2) (a) [3] [a]. 

Reenlistment in See Enlistment I B 2 c. 

Use of Army in See Army II B. 

ALASKAN ROAD COMMISSION. 

Authority of See Territories III F to G. 

Sale of property See Public Property IX A 3 a. 

ALIEN. 

I. MAY DISPLAY FLAG OF COUNTRY. 

n. MINOR MAY DECLARE INTENTION TO BECOME CITIZEN. 
m. APPLICATION FOR CITIZENSHIP MADE BEFORE COURTS IN 

UNITED STATES. 
rv. IN ALASKA, CITIZENSHIP HOW SECURED. (See Territories.) 
V. ENLISTMENT OF. (See Enlistment.) 

VI. DISCHARGE OF, FROM ARMY. (See Discharge.) • 
Vn. MAY WORK ON GOVERNMENT WORKS. 

I. Held that there is no law preckiding an alien residing in the 
United States, the subject of a foreign Government with which we are 
at peace, from displaying the flag of his country on his dwelling. 
P. 15, 176, Mar., 1887. 

II. Under section 4 of the act of June 29, 1906 (34 Stat. L., 596), 
an alien minor, independently of his family, may make declaration 
of his intention to become a citizen at any time after he reaches the 
age of 18. C. IOO4O, Nov. 28, 1910. . . . ' 

III. As none of the courts established in the Philippine Islands 
come under the terms of description used in section 2165, Revised 
Statutes; TieM, that a soldier applying for naturalization should ap- 
pear before a court in the United States having jurisdiction to 
naturalize. C. 12293, Mar. 29, 1902. The same is' true in Cuba. 
a 10916, July 23, 1901. 

VII. There is no law prohibiting contractors on Government 
work employing persons on such work who are not citizens of the 
United States. C. 724, Dec. 6, 1894. 

cross references. 

Appointment to office See Office III Alb (1). 

Armory can not he used for drill by See Militia VIII B. 

Candidate for West Point See Army I D 1 a (2) (a) [2] [a] [B]. 

Contracts with See Contracts XXIII to XXIV. ■\ 

Desertion of. See Desertion IX L; M. 

Discharge of. See Discharge XXVI A. 

Enlistment of See Enlistment I B 1 b (1); (2); C to D. 

Naturalization of See Militia XIX to XX. 

Nonintercourse m war See War I C 2 b. 



ALIMONY APPREHENSION. 21 

ALIMONY. 

Judgment against an officer See Army I C 2. 

Proceedings for, against retired officer See Retirement I G 2 d. 

ALLOTMENTS. 
Of pay See Pay and allowances I C 8 a. 

ALLOWANCES. 

See Pay and allowances II to IV. 
Chief and assistant chief of Philippine con- See Territories IV B 2 a (1). 
stabulary. 

Militia during joint encampment See Militia VI B 2 h. 

Not pay See Pay ans allowances II A 3 a (1). 

Officers at Soldiers' Home See Soldiers' Home I C. 

Post exchange officer.- See Government agencies II B 1. 

Sea travel See Command V B 1. 

ALTERNATE. 

Beneficiary for gratuity See Gratuit"* I B 4 b. 

Candidate for West Point See Army I D 1 a (2) (6) [1]. 

AMENDMENT. 

Bids See Contracts VI M. 

Charges *. See Discipline II D 8 a; H 1; 2; IV B 1; 

XIV E 7 b; c. 

Muster roll, unauthorized See Pay and allowances III E 1. 

Records, official, not permitted See Volunteer Army I V H 1. 

AMERICAN NATIONAL RED CROSS. 

See Red Cross II to III. 

AMMUNITION. 
Issue of. See Militia XII B. 

ANNULMENT. 
Of contract See-CoNTRACTS VII J 1; XXI to XXII. 

APPEAL. 

See Absence II A 2. 

From regimental court-martial See Articles of War XXX A. 

From general court-murtial See Discipline XIV E 9 f (1) ; XV 1 1. 

APPOINTMENT. 

Board of review See Army I G 3 d (2) (b). 

Bureau chief. See Rank I B 1 d to e. 

Cadetship See Army I D 1 a to c. 

Constructive pardon See Pardon XV C 3. 

Date of. See Office III B 3 to 4. 

Eligibility of dismissed officer for See Office I V E 1 c ; 2 f . 

Medical Department See Rank I B 1 c to d. 

Noncommissioned officers See Rank I D to E. 

Office in Army See Office II to IV. 

Office in Volunteers See Office V A to B. • 

Pay before See Pay and allowances I A 1 a. 

Porto Rico Regiment See Army I G 2 a (1) (a) ; (6). 

Successor: vacates office See Office IV C; D 5 c (2). 

APPREHENSION. 
Of deserter See Desertion III A to H. 



22 appropriations: synopsis. 

APPROPRIATIONS. ^ 

I. GENERAL RULE AS TO EXPENDITURES COVERED BY APPRO- 
PRIATION ACTS. 

A. Appropriation for "Construction" of Telegraph Line In- 

cludes ALL Expenditures Necessary to Carry out the 
Provisions op the Act Page 25 

B. An Appropriation Does Not Cover an Article Named in 

THE Estimates Unless it Names that Article or Desig- 
nates A Class that would Include that Object Page 26 

C. Appropriations Made in Conformity to Estimates Imply an 

Authority to Purchase the Article Named in the Esti- 
mate. 
n. WORDS NECESSARY TO CONSTITUTE AN APPROPRIATION. 

APPROPRIATION BY IMPLICATION Page 27 

m. SECTION 3736, R. S. LANDS SHALL NOT BE PURCHASED EX- 
CEPT UNDER A LAW AUTHORIZING SUCH PURCHASE. 
IV. SECTION 3678, R. S. SUMS APPROPRIATED SHALL BE APPLIED 

TO THE OBJECT FOR WHICH APPROPRIATED Page 28 

V. SECTION 3690, R. S. ANNUAL AND PERMANENT APPROPRIA- 
TIONS. PERIOD FOR WHICH APPROPRIATIONS ARE AVAIL- 
ABLE. 

A. Section 3690, R. S., in General. 

B. Permanent Appropriation Usually Available Regardless 

OF Lapse of Time Page 29 

C. Necessary Expenses Required in Preparation op a Conthact 

that is Payable From an Ann^ual Appropriation May be 
Paid, Although Incurred Before Beginning of Fiscal 
Year Page 31 

D. An Annual Appropriation is Available for Two Years 

After the Expiration of the Fiscal Year. 
VI. PROPERTY CAN NOT BE TRANSFERRED FROM ONE BUREAU 
TO ANOTHER EXCEPT WHERE PROPERTY IS NOT NEEDED 

FOR PURPOSE FOR WHICH PURCHASED Page 32 

Vn. MONEY DONATED TO THE UNITED STATES CAN NOT BE EX- 
PENDED UNTIL APPROPRIATED Page 33 

Vm. EXPENSES PRELIMINARY TO PURCHASES FOR WHICH AN 

APPROPRIATION IS MADE ARE CHARGEABLE TO THE 

APPROPRIATION. 

EC. WHERE AN APPROPRIATION IS MADE FOR A CERTAIN OBJECT 

THE ENTIRE APPROPRIATION CAN NOT BE EXPENDED FOR 

PARTIAL PERFORMANCE ONLY Page 34 

X. SPECIFIC APPROPRIATION CAN NOT BE SUPPLEMENTED BY 

A GENERAL APPROPRIATION. INSTANCES Page 35 

XI. RULE THAT GENERAL WORDS FOLLOWING THE ENUMERA- 
TION OF SPECIAL ARTICLES OR CLASSES OF ARTICLES ARE 
TO BE CONSTRUED AS LIMITED TO ARTICLES OF A LIKE 

KIND WITH THOSE SPECIFIED Page 37 

Xn. APPROPRIATIONS THAT COVER THE PAYMENT OF A REWARD 

FOR THE DETECTION OF CRIME Page 38 

Xm. USE OF APPROPRIATION TO REIMBURSE PERSONS WHO HAVE 
EXPENDED MONEY FOR PURPOSES COVERED BY THE AP- 
PROPRIATION. 

' Prepared by Maj. H. M. Morrow, judge advocate; assistant to Judge Advocate 
General. 



appropriations: synopsis. 23 

Xrv. APPROPRIATIONS FOR "IMPROVEMENT" OF RIVERS AND 

HARBORS AND OTHER CIVIL WORKS. 
XV. APPROPRIATION FROM WHICH PROPERTY HAS BEEN AC- 
QUIRED SHOULD BE CHARGED WITH THE EXPENSE OF AN 
ABSTRACT OF TITLE AND OTHER EXPENSES CONNECTED 
WITH TRANSFER OF LAND, AS EXPENSE OF RECORDING 

DEEDS, PAYMENT OF TAXES, ETC Page 39 

XVI. APPROPRIATIONS FOR THE RELIEF OF SUFFERERS FROM 

STORMS, ETC Page 40 

XVn. APPROPRIATIONS FOR " CONSTRUCTION " OF LAUNDRIES DO 
NOT AUTHORIZE THE PURCHASE OF A BUILDING ALREADY 

CONSTRUCTED Page 41 

XVm. EXPENDITURE OF PUBLIC MONEY ON LAND SUBJECT TO A 
PUBLIC EASEMENT,' OR ON LAND TO WHICH THE UNITED 
STATES DOES NOT HAVE TITLE. 

XIX. APPROPRIATIONS FOR MILEAGE Page 42 

XX. APPROPRIATIONS FOR TRANSPORTATION Page 43 

XXI. APPROPRIATIONS FOR INCIDENTAL EXPENSES OF QUARTER- 
MASTER'S DEPARTMENT Page 45 

XXn. APPROPRIATIONS FOR SUPPORT OF THE ARMY AVAILABLE 
FOR STRICTLY ARMY PURPOSES AT MILITARY ACADEMY, 
GENERAL HOSPITALS, WAR COLLEGE, ETC. 
XXm. APPROPRIATIONS FOR CONTINGENT EXPENSES OF WAR 

DEPARTMENT Page 46 

XXrV. CONTINGENCIES OF THE ARMY Page 47 

XXV. APPROPRIATIONS FOR EXPENSES OF COURTS-MARTIAL, 

COURTS OF INQUIRY, ETC PageSO 

XXVI. APPROPRIATIONS FOR TELEGRAMS AND TELEPHONE MES- 
SAGES ON "OFFICIAL BUSINESS" Page 51 

XXVn. APPROPRIATIONS FOR THE MILITIA. (See Militia and "Appro- 
priations" XXX.) 
XXVm. APPROPRIATIONS FOR BARRACKS AND QUARTERS.... Page 52 

XXIX. APPROPRIATIONS FOR POST EXCHANGES Page 53 

XXX. APPROPRIATIONS RELATING TO FORTIFICATIONS AND SEA- 
COAST DEFENSES Page 54 

XXXI. APPROPRIATIONS FOR REGULAR SUPPLIES Page 55 

XXXn. ACT OF MARCH 3, 1899, CREATING AN EMERGENCY FUND. 
XXXm. MONEY PAYABLE FROM A SPECIFIC APPROPRIATION CAN NOT 
BE TRANSFERRED TO THE CREDIT OF ANOTHER APPROPRI- 
ATION. 
XXXrv. PROCEDURE WHERE ACCOUNTS ARE PAYABLE FROM AN 

EXHAUSTED APPROPRIATION Page 56 

XXXV. ACT OF JUNE 16, 1890, AS TO MONEY FOR DISCHARGE BY PUR- 
CHASE BEING DEPOSITED TO CREDIT OF AN ARMY APPRO- 
PRIATION. 
XXXVI WHERE AN ARTICLE IS TO BE USED FOR A PURPOSE COVERED 
BY TWO SEPARATE APPROPRIATIONS, COST MAY BE APPOR- 
TIONED BETWEEN THE TWO APPROPRIATIONS. 

A. Wood-working Machinery at Military Prison. 

B. Machinery for Laundering Clothes of Prisoners at Military 

Prison. 

C. Printing of Blank Forms for Special Inspection. 

D. Printing of Certain Specially Ruled Sheets Relating to 

Fortifications and the Militia ; Page 57 



24 



APPROPRIATIONS : SYNOPSIS. 



XXXVn. PLANT INSTALLED AT ARTILLERY SCHOOL WHETHER 
CHARGEABLE AGAINST APPROPRIATION FOR FORTIFICA- 
TIONS OR FOR SUPPORT OF SCHOOL. 
XXXVm. RIVER AND HARBOR ACT OF MARCH 3, 1899, WHETHER EX- 
PENSE OF REMOVING FALLEN RAILROAD BRIDGE OVER 
CANAL SHOULD BE PAID FROM APPROPRIATION FOR RE- 
MOVING WRECKS OR FOR CARING FOR CANALS. 
XXXIX. APPROPRIATION FROM WHICH CUSTOMS DUTIES AND INTER- 
NAL-REVENUE TAXES ON GOVERNMENT PROPERTY ARE 
PAYABLE. 
XL. FUEL AND LIGHT FOR COMMISSARY STOREHOUSE WHETHER 
CHARGEABLE AGAINST QUARTERMASTER'S OR SUBSIST- 
ENCE DEPARTMENT. 
XLI. ELECTRIC INSTALLATION AND OPERATION OF FANS FOR 
HOSPITALS WHETHER CHARGEABLE AGAINST APPROPRI- 
ATION FOR QUARTERMASTER'S DEPARTMENT OR MEDI- 
CAL AND HOSPITAL DEPARTMENT Page 58 

XLH. EXPENSE OF REMOVAL OF BUILDINGS FOR CONSTRUCTION 
OF HOSPITAL CHARGEABLE AGAINST APPROPRIATION FOR 
CONSTRUCTION OF HOSPITAL, REGARDLESS OF THE FACT 
THAT ANOTHER DEPARTMENT CONTROLLED THE BUILD- 
INGS TO BE REMOVI^D. 
XLm. TELEPHONE MESSAGES FROM A HOSPITAL WHETHER CHARGE- 
ABLE AGAINST HOSPITAL FUNDS OR APPROPRIATIONS FOR 
QUARTERMASTER'S DEPARTMENT. 
XLIV. ACT OF MARCH 2, 1901, AS TO PURCHASE OF MEDICAL AND 
HOSPITAL SUPPLIES, MAY BE USED TO EQUIP ROOMS IN 
ARMY MEDICAL SCHOOL FOR INSTRUCTION PURPOSES. 
XLV. ACT OF MAY 11, 1908, AS TO APPROPRIATION FOR MEDICAL 

CARE OF CIVILIAN EMPLOYEES. 
XLVI. "ELECTRIC FIXTURES " PROVIDED FOR IN APPROPRIATION 
ACT INCLUDES WATT METERS FOR MEASURING ELECTRIC- 
ITY Page 59 

XLVn. ACT OF FEBRUARY 27, 1893, APPROPRIATING FOR FUEL AND 

LIGHTS FOR ENLISTED MEN, INCLUDES GAS. 
XLVm. EXPENSE OF OBTAINING SERVICES OF EXPERTS IN CONNEC- 
TION WITH TEST OF COAL CHARGEABLE AGAINST APPRO- 
PRIATIONS FOR FUEL AND HEATING APPARATUS. 
XLEC. UNEXPENDED BALANCE AFTER COMPLETION OF MONUMENT 
ERECTED BY MONEY JOINTLY CONTRIBUTED BY UNITED 
STATES AND STATE TO BE DIVIDED PRO RATA BETWEEN 
UNITED STATES AND STATE. 
I. COST OF DISTILLED WATER CHARGEABLE AGAINST APPRO- 
PRIATION FOR PROCURING WATER AND INTRODUCING 
THE SAME TO BUILDINGS. 
LI. APPROPRIATION FOR ERECTION OF BUILDING DOES NOT 

INCLUDE FURNITURE Page 60 

LH. APPROPRIATION FOR CONSTRUCTING ROADS AND WHARVES 
INCLUDES REPAIRING A CRIB DOCK AND APPROACH 
THERETO. 
im. THE COST OF MAINS AND HYDRANTS SITUATED IN A STREET 
PURCHASED BY THE UNITED STATES IS CHARGEABLE 
AGAINST THE APPROPRIATION FOR THE PURCHASE OF THE 
STREET. 



APKOPRIATIOOSrS T A. 25 

LIV. ACT OF MARCH 2, 1907, MAKING APPROPRIATION FOR LIBRARY 
OF SURGEON GENERAL'S OFFICE, INCLUDES THE HIRE OF 
LABORERS TO HANDLE AND CARRY THE BOOKS. 
LV. ACT OF JULY 1, 1898, MAKING AN APPROPRIATION TO COVER 
THE ENTIRE COST OF LIGHTING AND MAINTAINING CER- 
TAIN ELECTRIC LIGHTS, INCLUDES NECESSARY EXCAVA- 
TIONS AND EXTENSION OF UNDERGROUND CONDUITS. 
LVI. ACT OF MARCH 23, 1910, APPROPRIATING FOR MAINTENANCE 
AND REPAIR OF TELEGRAPH LINES INCLUDES TRAVEL 
EXPENSES OF CIVILIAN EMPLOYEE. 
LVn. ACT OF MARCH 9, 1906, FOR PROPER FENCING OF BURIAL 
GROUNDS IN CONNECTION WITH MARKING GRAVES OF 
CONFEDERATE DEAD, INCLUDES THE SERVICES OF AN 
ARCHITECT TO DESIGN THE FENCING AND INCLUDES 
GRADING. 
LVm. COST OF PRIVATE TREES CUT DOWN IN COURSE OF TACTICAL 
INSTRUCTION AT A SERVICE SCHOOL CHARGEABLE AGAINST 

THE APPROPRIATION FOR THE SCHOOL Page 61 

LEC. ACT OF FEBRUARY 14, 1902, FOR THE ESTABLISHMENT OP 
FORT WILLIAM McKINLEY, HELD NOT TO AUTHORIZE CON- 
STRUCTION OF ROADS. 
LX. NO APPROPRIATION AVAILABLE FOR FURNISHING MUSIC 

FOR "VOLUNTEER BANDS." 
LXI. EXPENSE OF CONFINING NATIVE OF PORTO RICO IN PENI- 
TENTIARY FOR CIVIL CRIME FOR WHICH TRIED BY MILI- 
TARY COMMISSION NOT PAYABLE FROM APPROPRIATIONS 
FOR THE ARMY. 
LXn. ACT OF JUNE 28, 1910, APPROPRIATING FOR " REPAIR " OP 

MONUMENTS ON BATTLE FIELD. 
LXm. ACT OF JULY 8, 1898, RELATIVE TO TRANSPORTING TO THEIR 
HOMES THE REMAINS OF DECEASED OFFICERS AND SOL- 
DIERS. 
LXIV. REMARKS OF QUARTERMASTER GENERAL BEFORE CONGRES- 
SIONAL COMMITTEE NOT TO PREVAIL OVER LANGUAGE OF 

APPROPRIATION Page 62 

LXV. ACT OF MARCH 3, 1909, AS TO USING ONE APPROPRIATION TO 
MAKE UP DEFICIENCY IN ANOTHER, NOT LIMITED TO AP- 
PROPRIATIONS PERTAINING TO SAME FISCAL YEAR. 
LXVI. FORFEITURE OF PAY OF CIVILIAN EMPLOYEE BY SENTENCE 

OF COURT-MARTIAL. 
LXVn. APPROPRIATION FOR MAINTAINING AND IMPROVING 
NATIONAL CEMETERIES SUFFICIENT TO COVER A SIDE- 
WALK IN FRONT OF A NATIONAL CEMETERY. 

^^ I A. The act of February 17, 1887 (24 Stat. 405), appropriated ^ 
"for the construction of a mihtary telegraph Hne on the eastern coast 
of the State of Florida from * * * ^^^^^ f^^. ^j^^ establishment of a 
station for the taking of meteorological observations and the dis- 
play of storm signals at Point Jupiter," lield that it is the imperative 
rule that expenditures are payable out of the appropriation under 
which they are specifically provided for, and that applying this rule 
to the above act, it follows that all expenses legitimately incurred in 

» In an appropriation act general legislation beginning with the word "hereafter" 
takes effect at the date of the act and not at the beginning of the ensuing fiscal year 
for which the appropriation is made. Chance v. U. S., 38 Ct. Cls. 75. 



26 APPROPRIATIONS I B. 

the construction of the telegraph hne in question and in establishing 
the station for the purposes intended are legally payable out of the 
appropriation in question, and include the mileage of the officer to 
supervise the work, the transportation of the enlisted men engaged 
therein, the materials to be used, the hire of labor, etc., the erection 
of the necessary shelter, the purchase of instruments, and every 
other expenditure necessary to carry out the provisions of the act to 
construct the line and to estabhsh the station.^ 51 R. 666, Mar. 12, 
1887. 

I B. The act of March 3, 1891 (26 Stat. 978), appropriated 
$200,000 '.'to enable the Secretary of War to coniplete the establish- 
ment of the Chickamauga and Chattanooga National Park, accord- 
ing to the terms of an act entitled 'An act to establish a national 
military park at the battlefield of Chickamauga,' approved August 
19, 1890." The estimates for this appropriation included sundry 
items to the amount of double the sum actually appropriated, that is, 
$400,000, and it was claimed that one of these items in the estimates, 
that of $35,000 for "seven wrought-iron observation towers," was 
included in the act, notwithstanding that the act cut down the total 
of the estimate by one-half, made no mention of the particular item 
of observation towers, and specified no class of objects within which 
it could be included, but made an appropriation in the most general 
terms to carry Out the purposes of a previous act, which also did not 
include observation towers. Held that the appropriation did not 
include the erection of observation towers, and that although esti- 
mates are a legitimate means of construction of appropriation acts 
based on them,^ yet an appropriation act can not be construed as 
appropriating for a certain article specified in the estimates unless 
such appropriation act either names that article or designates a class 
of objects within which it may be fairly and reasonably embraced.^ 
If a certain article is fairly and reasonably embraced within a class 
of objects designated in the appropriation act, it may be presumed 
that Congress had in view that particular article and intended to 
make provision for it. 5Jf. P. 112, June 14, 1892. 

I C. It is a familiar general principle adopted and acted upon in 
the executive departments that appropriations made in conformity 
with estimates, and based upon them, impl};^ an authority to expend 
the appropriated funds for the articles designated in the estimates 
and imply a legislative sanction of the objects for which the appro- 
priations were asked." 51 R. 666, Mar. 12, 1887; 41 P. 105, May 29, 
1890; C. 584, July 28, 1911. 

' InVIIComp.Dec, 31, it was said: "It is true that the question whether a particular 
expense is necessary or appropriate to the object for which an appropriation is made 
is one which is in general within the discretion of the head of the department having 
control of the disbursement of the moneys appropriated. This is particularly true of 
any question of the necessity for an expenditure, or of the character or quality or rea- 
sonable cost of any article purchased under a particular appropriation; and, except 
as to unconscionable transactions, which are not to be presumed, the exercise of such 
discretion in relation to these particular questions, within the authority of the law, is 
conclusive upon the accounting officers and the courts. (United States v. Speed, 8 
Wall., 77, 83; Earnshaw v. United States, 146 U. S., 60, 68.) But the discretion bo 
conferred is not an unlimited discretion; it is a legal discretion, subject to the terma 
of the particular appropriation and to restrictions imposed by other laws. (V Comp. 
Dec, 152.)" SeealsoVIIIComp. Dec, 327. 

2 See Ohio v. Thomas, 173 U. S. 276, 282. 

3 See VI Comp. Dec, 912. 

* See Dig. Second Comptroller of 1869, pars. 76 and 77. 



APPROPRIATIONS II. 27 

II. A Senate resolution of May 2, 1900, provided "That the Sec- 
retary of War be directed to communicate to the Senate the number, 
amount, and character of all claims which have come to his knowledge 
against the United States for damages to private property used or 
destroyed by troops in the military service within the limits of the 
United States during the War with Spain, and to ascertain the loss or 
injury, if any, that may have been sustained by such claimants, and 
report to the Senate what amounts he finds to be equitably due from 
the United States to such claimants." Held that the above resolu- 
tion did not constitute a law making an appropriation for the expenses 
of the investigation provided for, and therefore the Secretary of War 
would not be authorized to involve the United States in any expense 
in making such investigation.^ C. 8199, May 5, 1900. The river 
and harbor act of June 3, 1896 (29 Stat. 213), provided for an inves- 
tigation of San Pedro Harbor, Cal., by a board, and upon the report 
of the board expressly authorized the Secretary of War to let the 
contract for the improvement of the harbor, and appropriated 
$50,000 "for the expenses of the board and payment of the civil 
engineers for their services." It clearly appeared from the wording 
of the act that it assumed that the money to pay for the improvernent 
was appropriated b}^ the act; but in fact the act did not appropriate 
for the improvement. Held, that as the act expressly authorized the 
Secretary to let the contract he could let it on credit if he wished, but 
he could not proceed with the work itself, as the use of the money for 
the work itself ivould violate the provisions of sections 3678, 3679, 
3732, and 3733, R. S. C. 3721, Nov. 18, 1897. 

III. Section 3736, R. S., provides that "no land shall be purchased 
on account of the United States except under a law authorizing 
such purchase." Held, that in view of the above provision of the 
Revised Statutes, the provision in the act of February 14, 1902 
(32 Stat. 12), providing "for the establishment in the vicinity of 
Manila, P. L, of a military post, including the construction of bar- 
racks, quarters for officers, hospital, storehouses, and other buildings, 
as well as water supply, lighting, sewerage, and drainage, necessary 
for the accommodation of a garrison of two full regiments of infantry, 
two squadrons of cavalry, and two batteries of artillery, to be avail- 
able until expended, five hundred thousand dollars," was not suf- 
ficient to justify the purchase of land.^ C. 12154, Mar. 4, 1902. The 
act of May 26, 1900 (31 Stat. 206), made an appropriation "for the 

1 The act of February 27, 1899 (30 Stat. 894), directed the Secretary of War to 
"appoint and detail" an officer of the Army to investigate claims for services of 
members of the Fourth Arkansas Mounted Infantry, but the act made no appropria- 
tion to meet the expenses of the appropriation. It was therefore held that as there 
was no other appropriation out of which the expenses could be legally paid the act 
was inoperative, and subsequently an appropriation of $2,000 was made for that pur- 
pose by the urgent deficiency act of February 9, 1900. See4Comp. Dec, 325; 6id.514; 
7 id. 411; 13 id. 729; Fisher's case, 15 Ct. Cls. 323, for a review of forms of acts held 
to constitute an appropriation. See also 6 Ct. Cls. 84. Section 9 of the act of June 30, 
1906 (34 Stat. 764), provides: "No act of Congress hereafter passed shall be construed 
to make an appropriation out of the Treasury of the United States, or to authorize 
the execution of a contract involving the payment of money in excess of appropriations 
made by law, unless such act shall in specific terms declare an appropriation to be 
made or that a contract may be executed." As to the meaning of the words "in 
specific terms" see 13 Comp. Dec, 219, 700, 729. 

2 In this case supplemental legislation (32 Stat. 465) authorized the use of a portion 
of the appropriation for the purchase of land. See also 7 Comp. Dec, 524; 11 id. 132; 
14 id. 784; 11 Op. Atty. Gen. 201; 19 id. 80; 22 id. 665; 24 id. 603. 



28 APPKOPRIATIONS IV. 

purpose of connecting headquarters, Department of Alaska, at St. 
Michael, by military telegraph and cable lines with otlier military 
stations in Alaska." Held, that in view of the requirements of 
section 3736, R. S., the above act would not authorize the accept- 
ance by the military authorities of the donation of a lot in Alaska 
as a site for a telegraph office and quarters for a signal corps detach- 
ment. C. 2187 J^, Feb. 18, 1908. So where the act of June 25, 1910 
(36 Stat. 725), made an appropriation as follows: "Mount Rainier 
National Park: For additional work upon the wagon road into said 
park from the west, heretofore surveyed and commenced under the 
direction of the Secretary of War, to be immediately available," lield, 
that in view of the requirements of section 3736, R. S., the appro- 
priation did not authorize its application to the acquisition of a right 
of way for the roadway. C. 16898, Nov. 26, 1910. 

IV. In view of the requirements of section 3678, R. S., that "All 
sums appropriated for the various branches of expenditure in the 
public service shall be applied solely to the object for which they 
are respectively made, and for no other," held that the expense 
of fencing a tract of land the property of the United States, 
intended for fortification purposes, would not be a legal charge 
against an appropriation for river and harbor improvements. C. 726, 
Jan. 8, 1895. Nor where an appropriation was made for "shelling 
or otherwise improving to completion" a certain designated road 
between two places named could the appropriation be expended on 
the construction of an entirely different road from that designated. 
C. 3635, Nov. 9, 1897. Nor could an appropriation for the support 
of the Army or for the construction and maintenance of works of 
river and harbor improvement be expended for insuring public 
property against fire or. employees against accident. C. 23069, 
Mar. 16, 1909. Wliere an appropriation is made expressly for a 
"Cavalry post" and a bill to make the appropriation available for 
the construction of a post for "mobile troops" had passed only one 
House of Congress, lield that in view of section 3678, R. S., the appro- 
priation could not be expended for the construction of a post for 
mobile troops other than Cavalry, notwithstanding that the amending 
bill had passed one House of Congress. C. 28948, Sept. 7, 1911. 

V A. Section 3690, R. S., provides that "all balances of appro- 
priations contained in the annual appropriation bills and made 
specifically for the service of a fiscal year, and remaining unex- 
pended at the expiration of such fiscal year, shall only be applied 
to the payment of expenses properly incurred during that year, or 
to the fulfillment of contracts properly made within that year; and 
balances not needed for such purposes shall be carried to the surplus 
fund.* This section, however, shall not apply to appropriations 
known as permanent or indefinite appropriations." ^ Held with 
respect to this section: (1) Wliere supplies are both ordered and 
delivered within the fiscal year or a contract is made providing for 

1 "Congress intends that each annual appropriation should bear the burdens of the 
particular year for which it is granted, and that it should be for the proper use of that 
year, and no other." 6 Comp. Dec, 815, 819. "It must be remembered that an 
annual appropriation can only be used for the needs and uses of the particular fiscal 
year for which it is made, or in payment of contracts properly made for such needs 
and uses." 11 Comp. Dec, 455. 13 Op. Atty. Gen., 288. 

* Permanent appropriations are those made for an unlimited period; indefinite 
appropriations are those in which no amount is named. 13 Op. Atty. Gen., 288. 



APPROPRIATIONS V B. 29 

their delivery within the year, the appropriations for that year are 
chargeable therefor, unless it clearly appears that the amount was 
manifestly and largely in excess of the needs of the year, including 
in such needs the keeping of a reasonable stock on hand. As, for 
instance, where forage was both purchased and delivered in a certain 
fiscal year, but the voucher showed it was intended for use during 
July, August, and September, of the next fiscal year, it should be 
paid for from funds for the former fiscal year if there was a shortage 
m the "reasonable stock on hand " at the time, otherwise it must be 
paid for from the funds of the next fiscal year.^ (2) Wliere a con- 
tract is made witliin the fiscal year providing for deliveries within 
the year, the appropriation for that year would be chargeable there- 
with, even if the actual deliveries were not made until after its close, 
subject to the limitation stated in (1).^ (3) Wliere a contract is 
made within a fiscal year, providing for deUvery of supplies to begin 
in that year, and the deliveries are completed after its expiration, 
the appropriation for that year would be properly chargeable if it 
appears that the supplies delivered after the expiration of the year 
were required to replace inroads made during the year on the "rea- 
sonable stock on hand." In such a case the supplies could be con- 
sidered as ^'for the service of that year J" (4) If a nonperishahle article 
is needed for a given fiscal year, either for actual use or to keep a 
"reasonable stock on hand, its purchase during that year should 
be charged to the appropriation for that year, even though its use 
may be continued for several years. (5) Wliere a contract for a 
building is made and construction begun within a fiscal year, the 
appropriation for that year would seem to be properly chargeable 
therewith, even though the construction is not completed until 
some time after its expiration.^ C. 8525, June 27, 1900, and July 
16, 1910; 22225, Oct. 18, 1907. 

V B. The expenditure of an unexpended balance of an appropria- 
tion not "made specifically for the service of any fiscal year- within 
the meaning of section 3690 R. S., is not rendered illegal by the lapse 
of time, as, for instance, 10 years since the date of the appropriation. 
C. 4066, Apr. 27, 1898. So where the act of March 3, 1901 (31 Stat. 
1168), made an appropriation "Toward the enlargement of Governors 
Island, two hundred thousand dollars ; and for the erection of store- 
houses and other necessary buildings, in accordance with the plan 

1 4 Comp. Dec, 555; 6 id., 898. 

2 Bids were invited about the close of the fiscal year 1910 for supplying the Govern- 
ment with draft and pack mules during that fiscal year, and the lowest bid was properly 
accompanied by a guaranty to make good any loss to the United States resultingfrom 
the bidder's failure to enter into the contract or deliver the mules. The bidder 
failed to enter into a written contract, as required by section 3744, R. S., but was 
ready to deliver the mules, and the fiscal year ended before any mules were 
accepted. It was proposed that mules be accepted after the close of the fiscal year 
1910, but paid for out of the appropriation for the fis(;;al year 1910. Held thatin view 
of the existence of the guaranty, assuming that notwithstanding the provisions of 
section 3744 as to contracts under the War Department, the decision of the Comptroller 
in 2 Comp. Dec, 248, was applicable to cases arising under the War Department, 
mules accepted and delivered after the close of the fiscal year 1910 could be paid for 
from the appropriation for the fiscal year 1910. C. 26994, July 11, 1910. See, also, 
9 Comp. Dec, 10. 

^ See 11 Comp. Dec, 454, that repairs made to a building-will ordinarily be presumed 
to be for the needs and uses of the particular fiscal year in which they were ordered, 
although this presumption is not conclusive, but may be rebutted by the facts in 
each case. See, also, 11 Comp. Dec, 186, 227. 



30 APPEOPRIATIONS V B. 

reported by a board composed," etc., JieU that as it appeared the 
buildings were to be of a permanent character and were mtended for 
the storage of the clothing, armament, equipage, etc., of an army of 
considerable size and were not merely for the current needs of the 
servdce at Governors Island, the appropriation should be considered 
as permanent in character and would remain available until expended. 
C. 14502, Apr. 20, 1903. So, also, where the act of June 8, 1898 
(30 Stat. 437), made an appropriation "For contingent expenses of 
the Army, incident to the expedition to the Philippine Islands, to 
be expended under the direction of the commanding officer of the 
United States mihtary forces at the Philippine Islands, in his dis- 
cretion, for such purposes as he may deem best in the execution of his 
duties under the orders of the President, and for such objects as are 
not now appropriated for, to be available until expended." Held 
that an unexpended balance of the above appropriation was still 
available in the year 1909, and Tield, further, that if no mihtary map 
was prepared at the time of the occupation of the Philippine Islands 
by the United States forces, and if the necessity of such a map con- 
tinues to exist, the cost of its preparation in the year 1909 is a proper 
charge against the above appropriation. G. 25291, July 16, 1909. 
So where" the deficiency appropriation act of March 3, 1899 (30 Stat. 
1223), contained this provision "for emergency fund to meet unfore- 
seen contingencies constantly arising, to be expended in the discretion 
of the President, three million dollars," lield that the appropriation 
was still available in 1905 for expenditure for certain national defenses 
in the West Indies.! C. 17353, Jan. 7, 1905. But even though the 
appropriation is a permanent one, it will, upor the .accomplishment 
of the object for which made, be covered into the Treasury.^ Thus 
where the act of December 18, 1897 (30 Stat. 226), made an appro- 
priation for the relief oi destitute persons who had gone into the 
newly discovered Klondike mining region of Alaska, and the emer- 
gency calling for the appropriation had long since passed, lield that 
an unexpended balance of such appropriation was not available for 
expenditure in the year 1907. C. 20718, Jan. 21, 1907. 

Section 3690 R. S., in providing that balances of appropria- 
tions for any fiscal year remaming unexpended at the end -of such year 
shall not be applied to the "fulfillment" of any contracts except those 
"properly incurred during that year," ^ expressly excepts "permanent 
or indefinite appropriations." The existing law (sec. 1661 R. S.) 
makes a permanent appropriation * of a certain sum annually "for the 
purposeof providing arms and equipments for the militia." Held that 
a balance of this appropriation, remaining unexpended on the last day 
(June 30) of a certain fiscal year, could legally be used for the pay- 
ment of a contractor in December following, under a contract entered 
into in November with the Ordnance Department for the manufac- 

' In XV Comp. Dec, 576, this appropriation was held not to be a "permanent 
Bpecific" appropriation within the meaning of section 10 of the act of Mar. 4, 1909 
(35 Stat. 1027). 

2 I Comp. Dec, 487. ButseeXV Comp. Dec, 626, that an additional appropriation 
for a stated pm-poseis tantamount to a reappropriation of unexpended balances for the 
same purpose. 

2 See 6 Comp. Dec, 815;- id., 898. 

* This opinion is based on the opinion of the Second Comptroller of the Treasury 
dated Nov. 3, 1870, which is the basis for section 26, vol. 2, Digest of Decisions of the 
Second Comptroller. 



APPEOPRIATIONS V C. 31 

tiire of an arm intended to be issued to the militia. 31 R., 85, Dec. 3, 
1870. 

V C. Where there are necessary expenses connected with the 
preparation of and entering into a contract payable from an annual 
appropriation they may be paid from such appropriation when it 
becomes available, notwithstanding that they were actually incurred 
prior to the beginning of the fiscal year for which the appropriation 
was made. Thus where an appropriation for the purchase of land 
was available on July 1, 1911, and during the month of June, 1911, 
the United States attorney incurred certain expenses in preparing 
the abstracts of title to the property, Tield that such expenses should 
be paid from the appropriation.^ C. 29072, Oct. 6, 1911. 

V D. An appropriation made for a particular fiscal year is available 
for the payment of proper charges against it incurred during that 
fiscal year^ for a period of two years after the expiration of the fiscal 
year. It then lapses and is no longer available. 63 P., 337, Jan. 
31, 1894- Thus, where the annual Army appropriation act, making 
appropriations for the fiscal year ending June 30, 1891, appropriated 
as usual a certain sum for "barracks, quarters, and other buildings," 
held that, to have the benefit of this appropriation for the repair and 
reconstruction of the public buildings at Jefferson Barracks, Mo., 
it would be necessary that such work should be contracted for within 
that fiscal year, and that the funds appropriated should be availed 
of and expended within two years from the date of expiration of the 
fiscal year.^ 49 P., 320, Oct. 3, 1891. 

VI. In general the Secretary of War is not authorized, without the 
authority of Congress to turn over property of his department in his 
charge to another department for its use.* So the Secretary of War 
could not authorize the Surgeon General of the Army to transfer to the 
Secretary of Agriculture certain instruments purchased from the 
appropriation for "Medical and Hospital Supplies." SI P., 414} 
Jan. 25, 1892. So a transit belonging to the United States Military 
Prison at Fort Leavenworth, which is under the Department of 
Justice could not be transferred to the United States Infantry and 
Cavalry School at Fort Leavenworth, which is under the War Depart- 
ment. C. 1623, Aug. 7, 1895. But where the property desired to 
be transferred is no longer needed for the purpose for which appro- 
priated, it may be transferred to another department without the 
consent of Congress. Such a transfer would not be a sale ^ as the 
Government would not part with its title, and it would not, therefore, 
be open to the objection that public property can not be disposed of 
without the authority of Congress. Sec. 3678, R. S., provides that 
' ' all sums appropriated for the various branches of expenditures 

1 See I Comp. Dec, 472; 5 id., 486; 6 id., 898; 7 id., 595; 11 id., 189. See "Appro- 
priations" VIII. 

2 See I Comp. Dec, 170; 2 id., 547, 615; 3 id., 41, 623; 4 id., 553; 5 id., 318; 6 id., 
815, 898. For instances of annual appropriations, see 9 Comp. Dec, 7 58; 11 id., 529; 
14 id., 807. 

3 See sees. 3679, 3690, 3691, Rev. Stat., and sec 5, act of June 20, 1874 (18 Stat. 110); 
Digest Dec 2d Comp., vol. 3, p. 31; Comp. Dec, 82 (1893-94). For a review of the 
laws and decisions relating to the covering into the Treasury of balances of appropria- 
tions not used, see III Comp. Dec, 623. 

* Par. 682, A. R., 1910, provides that "supplies" may be furnished by one bureau 
to another. 

* Par. 630, A. R., 1910, provides that the transfer of public propertv from one bureau 
or department to another is not regarded as a sale, and provides for the disposition 
of the vouchers for such property. See also 3d Comp., 602; 9 id., 625. 



32 APPROPRIATIONS VI. 

in the public service shall be applied solely to the objects for which 
they are respectively made, and for no others." While this statute 
prohibits the expenditure of an appropriation for purposes other 
than those for which appropriated, yet if it be regarded as intended 
also to forbid the appHcation of property purchased from an appro- 
priation for a particular purpose to a different purpose, it should 
not be construed to forbid such a transfer where the property is no 
longer needed for the purpose for which appropriated. Therefore 
the property being no longer needed for the purpose for which 
appropriated, held that two vessels belonging to the Navy Depart- 
ment might be transferred for a definite or an indefinite time to 
the War Department for use as Army transports {C. 78^0, Mar. 14, 
1900); that certain cooking utensils, tableware, and soap purchased 
from a river and harbor appropriation to be used in connection with 
the improvement of rivers and harbors in Florida could be turned 
over to an officer for use in connection with a river improvement in 
Georgia^ Cc. 10300, Apr. 25, 1901); that five mules purchased in 
connection with certain harbor improvement in Alabama could be 
transferred to the Quartermaster's Department of the Army {C. 
3679, Nov. 26, 1897); that a sailboat in possession of the United 
States engineering officer at San Juan could be transferred to the 
Lighthouse Board (C. 10315, Apr. 29, 1901); that a Remington 
typewriter in possession of the Chickamauga and Chattanooga 
National Park Commission could be exchanged for a Smith Premier 
in the office of a certain quartermaster (C. 10741, June 25, 1901); 
that certain cable laid between Narragansett Pier and Block Island 
could be transferred to the Weather Bureau in the Department of 
Agriculture on the condition that the bureau keep the cable in repair, 
and in case of war or other military necessity restore it to the War 
Department (O. 12883, June 30, 1902); that certain property belong- 
ing to the Medical Department of the Army which had been con- 
demned and ordered to be destroyed could be turned over to the 
Forest Service of the Department of Agriculture {C. 21850, July 26, 
1907). 

It was proposed to transfer certain machinery purchased from an 
appropriation for the District of Columbia to an appropriation for 
a work of river and harbor improvement and in partial satisfaction 
of such machinery to transfer from the river and harbor appro- 

Jriation to the District of Columbia a certain steamer. The act of 
une 13, 1902 (32 Stat., 373) authorizes the disposition of property 
acquired for river and harbor improvements when no longer needed 
either by sale or transfer to other projects of improvement, the 
proceeds in case of sale to be credited to the appropriation for the 
work for which it was purchased or acquired, and in case of transfer 
the property to be valued and credited to the project in which it 
was formerly used and charged to the project for which it should be 
transferred. Held that as to the proposed exchange the above act 
constitutes clear statutory authority as respects the river and harbor 
improvement and the river and harbor appropriation should be 
charged only with the difference between the value of the machinery 
and the value of the steamer. As respects the District of Columbia 

' The act of June 13, 1902 (32 Stat., 37'3), now authorizes the sale of property acquired 
for the improvement of rivers and harbors when it is "no longer needed, or is no longer 
serviceable," 



APPROPETATIONS VI1„ 33 

there is no statutory authority. The proposed exchange, however, 
would not be a sale, as the Government would not ])art with its title, 
and it would not therefore be open to the objection that public 
property can not be disposed of without the authority of Congress, 
and there is no legal objection to the sale. As there is no statute 
authorizing the amount allowed for the machinery to be credited 
upon the project upon which it had been used, as in the case of the 
river and harbor improvement, the amount allowed should be 
treated as "Miscellaneous receipts," as recfuired by the statute for all 
moneys received for the use of the United States and should be 
deposited in the Treasury. Inasmuch as the machinery was originally 
purchased from an appropriation, one-half of which was charged to the 
revenues of the District of Columbia, one-half of the deposit should be 
to the credit of the District of Columbia. C. 27202, Aug. 30, 1910. 

VII. A certain work of river improvement required for its com- 

Eletion the expenditure of $10,000 more than had been appropriated 
y Congress for the work. A power company proposed to furnish 
and turn over to the United States to be expended on this work" 
the sum of S10,000. Held that the Secretary of War could not let a 
contract or employ labor, or purchase materials in excess of the appro- 
priation, and that if the sH.mi of $10,000 should be furnished and 
turned over as proposed, this sum could riot be expended on the work 
until it had been appropriated for the w^ork by Congress. Suggested, 
however, that an arrangement could be made by which the power 
company could legally purchase and pay for material, or pay laborers 
of its own, and the officers in charge of the works could legally use 
this material and the laborers. C. 1662, Aug. 23, 1895. So, where 
the Daughters of the American Revolution offered to donate a sum 
of money to be expended in the construction of a building at a mili- 
tary post to promote the physical, mental, and moral well-being of 
enlisted men, held that the Secretary of War was without authority 
to permit such a construction, and that the consent of Congress should 
be obtained for the acceptance and expenditure of the proposed 
donation. G. 123U, Apr. 2, 1902. 

Congress appropriated for a monument to the prison ship martyrs, 
the appropriation to become available when certain sums had been 
appropriated by the State of New York, and the city of New York, 
and when a certain sum had been subscribed by the Prison Ship 
Martyrs Monument Association. The sum appropriated by the State 
of New York was transferred to the Secretar}^ of War, who deposited 
it in the subtreasury in New York, held that in view of sections 3621, 
3639, 5488, 5490, and 5497 R. S. the money so deposited should be 
considered as quasi public money of the United States, and should 
remain on deposit in the subtreasury until disbursed in conformity 
to the act of Congress. G. 13999, Feb. 24, 1906. 

VIII. Where it became necessary to make certain preliminaiy 
surveys, plans, etc., in connection with the completion of the plan 
for the enlargement of the Militaiy Academy, held that the expenses 
incident to such preliminaiy work would be chargeable to the appro- 
priation for the erection of the buildings. G. 14563, Apr. 29, 1902. 
So, held, where services were rendered consisting in obtaining infor- 
mation and data as to the extent of work done by the French Canal 
Co. on the Isthmus of Panama preliminary to the acquisition of the 

93673°— 17 3 



34 APPROPKIATIONS IX. 

canal by the United States, the services being rendered prior to the 
act of appropriation.^ C. 16479, June IS, 1904- 

IX. Wlien a special appropriation is made for a certain object, it 
is an expression by Congress as to the amount of public money which 
can legally be expended for that object and the entire appropriation 
can not be expended for the partial accomplishment only of that 
object, thereby making an additional appropriation necessary to 
carry out the original purpose.- Thus where a specific sum was 
appropriated for a defined specific purpose — the ''construction com- 
plete of a sewerage system" at Fort Monroe — and, upon proposals 
being invited for tlie work, the lowest bid was in excess of the amount 
appropriated, held that the statute evidently contemplated the 
completion of the system within the appropriation made, the inten- 
tion of Congress clearly being to limit the cost of the work to that 
amount, and that the appropriation could not therefore legally be 
availed of for the construction of a system the completion of which 
would require an additional appropriation. 55 P. 364, Sept. 14, 
1892. So, held, where the act of June 4, 1897 (30 Stat. 50), appro- 
priated $10,000, or so much thereof as might be necessary ''for the 
construction of the military road from Fort Washakie, Wyo., at the 
most practicable route near the Wind River and the mouth of the 
Buffalo Fork and Snake River, and near Jackson's Lake in Uinta 
County, Wyo," and it appeared that the road could not be constructed 
within the limit of the appropriation. C. 3453, Aug. 24, 1897. But 
it appearing that a portion of the above road was in fairly good con- 
dition, and that the $10,000 expended on other portions of the road 
would place the entire road in fairly good condition, held that the 
appropriation might be so expended. C. 3453, Feb. 15, 1898. So, 
where the act of July 19, 1897 (30 Stat. 121), appropriated "for 
repair of damages caused by recent floods to the roadway leading 
from the Mound City National Cemetery to Mound City and Mounds, 
111., and to widen the road and elevate the grade, $3,500," and it 
appeared that all of such improvements could not be made within 
the limit of the appropriation, held that it would clearly be illegal 
to expend the appropriation for a part only of the work. C. 5544i 
Sept. 25, 1897. So, also, where an appropriation was made for 
removal of the rock in the North River of ISFew York Harbor to a 
depth of 40 feet, and, it appearing that it was impossible to remove 
the rock to such a depth within the limit of the appropriation, it was 
proposed to remove the rock to a depth of from 35 to 38 feet onlv.^ 
C. 14378, Mar. 30, 1903.^ So, where the act of June 30, 1906 (34 Stat. 
744), made an appropriation "for the partial reconstruction of the 
Alexander Bridge over the Chickamauga River on the eastern boun- 
dary of the Chickamauga Park," and it appeared that the estimates 
on which the appropriation was based contemplated that a complete 
structure should be built for the amount appropriated, and that the 
bridge could not be completed within the limit of the appropriation, 
and it was proposed to contract for the metal superstructure only, 

' I Comp. Dec., 34. As to a corresponding practice in relation to preliminary expenses, 
surveys, etc., in connection with river and harbor improvements, see "Appropria- 
tions" V C. 

2 See Hooe v. U. S., 218 U. S., 322; I Comp. Dec, 291; 6 id., 194; 7 id., 665; 8 id., 
27, 326; 9 id., 638, 560. 

3 See opinion of Comptroller in 7 Ms., 159, referred to on p. 63, Digest of Decisions 
of the Comptroller, 1894 to 1902. 



APPROPRIATIONS X, 35 

Tield, that as it is a well-established rule of accounting that appropria- 
tions based on estimates are to be construed with reference thereto, 
the contract could not be let for completing a part only of the bridge. 
C. 21096, Feb. .16, 1907. So, where an act appropriated $20,000 
for continuing work under a certain existing river and harbor project, 
this act ])roviding that the Secretary of War might enter into con- 
tracts for its completion, to be paid for as future appropriations were 
made, but limiting him in the matter of making the contracts to the 
amount of $660,000, and it was ascertained that it woidd cost over 
$l,000,0t)0 to do the necessaiy work, held, that in view of sections 
3679, 3732, and 3733 R. S., the Secretary of War had no authority 
without further legislation to contract for all the work covered 
under the existing project if it could not be done within the limit 
of the appropriation; and held, further, that the Secretary had no 
authority to abandon a substantial part of the work and contract 
for the remainder without further legislation. C. 2915, Feh. 4, 1897. 
So, held, where a sum of money was appropriated for the purchase 
of 924 acres of land as an addition to a target range, and it was found 
that the amount appropriated was not sufficient to buy the number 
of designated acres, and it was proposed to expend the appropriation 
in purchasing a smaller area, it being reported that the smaller area 
would give substantially as good a range as the one originally pro- 
jected." C. 24464, Feb". S, 1909. So, held, also, where the act of 
June 25, 1910 (36 Stat. 788), appropriated a sum of money for the 
purchase of 182.73 acres of land adjacent to the Shiloh National 
Militar}' Park, and it was proposed to expend most of the money 
in purchasing some 51 acres of the proposed addition, it being ex- 
tremely improbable that the additional acreage could be purchased 
within the balance of the apj^ropriation. C. 27363, Oct. 15, 1910. 

So, where the act of June 3, 1896 (29 Stat. 225), appropriated 
$22,250 and provided that this sum "or so much thereof as may be 
necessary shall be used at the discretion of the Secretar}^ of War in the 
construction of three ice piers" at certain designated places, held, 
that the entire sum could not lawfully be ex])ended on the construc- 
tion of one ice pier at one of tlie designated places. C. IO842, July 18, 
1901. But wliere an appropriation was made for the purchase of an 
entire tract of land and it was ])roposed that a part of the tract be 
purchased with a part of the appropriation, the circumstances indi- 
cating that the balance of the appropriation would be sufficient to 
purchase the balance of the tract, held, tliat the expenditure of a por- 
tion of the appropriation for the purchase of a part of the tract 
under the circumstances would be legal. C. 13580, Nov. 4, 1902; 
8125, Jan. I4, 1909. 

X. It is well established that where an appropriation is made for 
a specific object it is the only one applicable to that object, although 
but for such specific appropriation another one more general in terms 
might have been applicable.^ Under the above rule, where the act 

1 See "Appropriations" XXIV and XXXVIII. That a specific appropriation is 
exclusive of the general appropriation, and that the latter can not be used to supple- 
ment the former unless authorized bv Congress, see I Comp. Dec, 10, 57, 126, 236, 317, 
417, 559, 560; III id., 70, 373; IV id., 24; VI id., 124, 743; IX id., 259; XII id., 61; XIII 
id., 420;XlVid.,689. Suchauthority isgivenasto the Interior Department. IVid.,5. 
Where it is doubtful whether a particular item is properly payable from the appropria- 
tion for a particular object or from a general appropriation, "the matter is within the 
discretion of the head of the department having control of the appropriations. V id., 
855. And where in such a case the head of a department has exercised his discretion 



36 APPROPRIATIONS X. 

of June 30, 1902 (32 Stat. 507), provided, "United States Service 
Schools : To provide means for the theoretical and practical instruc- 
tion at the artillery school at Fort Monroe, Va.; the school of sub- 
marine defense at Willetts Point, N. Y.; the general service and staff 
college at Fort Leavenworth, Kans., and the cavalry and field artillery 
school at Fort Riley, Kans., by the purchase of textbooks, books of 
reference, scientific and professional papers, the purchase of modern 
instruments and material for theoretical and practical instruction, 
and for all other absolutely necessary expenses, to be allotted in such 
proportions as may, in the opinion of the Secretary of War, be for 
the best interest of the military service, twenty-five thousand dollars," 
Tield, that the appropriation for the general support of the Army was 
more specific than tne above appropriation as to articles that could 
be furnished by the several staff departments, such as quartermaster's 
supplies, stationery, etc. C. 13100, Aug. 15, 1902, Dec 11, 1906. 
So, also, where an appropriation for military post exchanges provided 
for the "construction, equipment, and maintenance of suitable build- 
ings at military posts and stations for the conduct of the post exchange, 
school, library, reading, lunch, amusement rooms, andgymnasium," 
held, that the appropriation under the above provision was more 
specific than the appropriation for incidental expenses in the quarter- 
master's department as to the construction of a fence, grand stand, 
seats, etc., for an athletic field at Fort Leavenworth. C. 14970, 
May 13, 1907. So, also, where an appropriation was made for clerical 
services at division and department headquarters, inclucUng clerical 
service necessary in the bureau of mihtary information, and another 
appropriation was made for clerical service in the quartermaster's 
department, lield, that the appropriation for clerical services at division 
and department headquarters was more specific than the other appro- 
priation as to a clerk on duty in the military information division, 
rliilippines Division, and that the salary of such clerk could not be 
paid from funds appropriated for the service'' of the quartermaster's 
department. C. 20^43, Sept. 29, 1904. So, also, where the act of 
June 12, 1906 (34 Stat. 240), made an appropriation for the Army 
War College "for expenses of the Army War College, being for the 
temporary hire of office rooms, purchase of the necessary stationery, 
office, toilet and desk furniture, textbooks, books of reference, scien- 
tific and professional papers and periodicals, binding, maps, police 
utensils, and for all other absolutely necessary expenses, fifteen 
thousand dollars," held, that a general appropriation for the construc- 
tion of the War College building was more specific than the above 
appropriation as to electric-light fixtures, which would become part 
or the building, and that the above appropriation could not be used 
to supplement the appropriation for the construction of the building 
for the purchase of such fixtures. 0. 20719, Nov. 24, 1906. So, also, 
where the act of May 11, 1908 (35 Stat. 106), made an appropriation 
for the Ai-my War College substantially similar to the appropriation 
quoted above of June 12, 1906, held, that as to an electric delivery 
wagon for the use of the War College the appropriation for the general 
support of the Army was a specific act, and the appropriation for the 
War College should be considered a more general appropriation, and 

in determining which should be so regarded, a subsequent change of this determination 
is not authorized. XII id., 199. And where two appropriations are applicable to the 
same object, neither specific so as to exclude the other, they are cumulative, and either 
or both ma}^be iised in the discretion of the head of the" department. IV id., 121. 



APPROPRIATIONS XI. 37 

that the expense of the deUveiy wagon should be paid from the appro- 
priation for the transportation of the Army. C. 23560, July 9, 1908. 
So, where the act of August 5, 1909 (36 Stat. 122), made an appro- 
priation for the Brownsville court of inquiry as follows: "For 
expenses of the court of inquiry provided for in chapter two hundred 
and sixty-five of the act approved March tliird, nineteen hundred and 
nine (35 Stat. 836) , for services of clerks and reporters, witness fees, 
messenger and janitor service, and such other employees as may be 
required, and for all other absolutely necessary expenses; to be 
expended by the Pay Department of the Army under the direction of 
the Secretary of War, to remain available during the fiscal year 
nineteen hundred and ten, fifteen thousand dollars," ^eM, that the above 
appropriation was a specific one for the expenses of the court of 
inquiry, and that the appropriation for the general support of the 
Army could not be used to pay any obhgations incurred by the court 
of inquiry after the appropriation above quoted should be exhausted. 
C. 20754, Mar. 7, 1910. 

XI. It is a rule of construction that general words following the 
enumeration of special articles or classes of articles are to receive a re- 
strictive construction limited to the articles or classes of articles of a like 
kind with those specified.^ In view of this rule, where the act of March 
2, 1905 (33 Stat. 827), appropriating for the School of Application of 
Cavalry and Field Artillery, enumerated certain specific classes of arti- 
cles as covered by the appropriation, followed by the words "and for 
all other absolutely necessary expenses," held that the above-quoted 
language was broad enough to cover articles similar to those enu- 
merated — that is, articles peculiar to the needs of the school — and, there- 
fore, would cover certain special equipments not kept in stock or issued 
to the Army, but required for use in the course in equitation at the 
school. C. 18490, Sept. 7, 1905; 13100, Sept. 22,^ 1903. Also, where 
the act of August 5, 1909 (36 Stat. 122), providing for the expenses 
of the Brownsville court of inquiiy, appropriated "for services of 
clerks and reporters, witness fees, messenger and janitor service, and 
such other employees as may be required, and for all other abso- 
lutely necessary expenses," held that the words "all other abso- 
lutely necessary expenses" would include the cost of telegrams sent 
by the court in the conduct of the inquiry. C. 20764, Feb. 3, 1910. 
Also, where the act of June 12, 1906 (34 Stat. 240), made an appropria- 
tion "for expenses of the War College, being for the temporary hire 
of office room, purchase of the necessary stationeiy, office and desk 
furniture, textbooks, books of reference, scientific and professional 
papers and periodicals, binding, maps, police utensils, and for all other 
absolutely necessary expenses," held th.^t, although the words "for ail 
other absolutely necessary expenses" would include drop-hghts and 
other necessary attachments as being a part of office or desk furniture, 
it was doubtful whether they would include an electric-light fixture 
intended to become a part of the building. C. 20719, Nov. 24, 1906. 
Held, further, that the words "for all other absolutely necessary ex- 
penses" in the above appropriation for the War CoUege would not 
cover an electric delivery wagon for use at the War CoUege. C. 
23560, July 9, 1908. 

1 See also Appropriations XII, XXXVIII. 
See Public Money I P. 
VIComp.Dec.,617; VII id., 189; VIII id., 298. 



38 APPROPEIATIONS XII. 

XII. Wliere acts of vandalism had been committed against prop- 
erty belonging to the Vicksburg National Military Park, and the act 
of March 4, 1909, (35 Stat. 1006), maldng an appropriation for the 
park, after specifying certain purposes for which the appropriation 
could be expended, added "and other necessary expenses," lield that 
these words of the appropriation were sufficiently broad to include 
the payment of a reward for the discovery of the perpetrator of the 
vandalism.^ C. 266Q5, May 5, 1910. So, lield, also, where acts of 
vandalism had been committed in a national cemetery and the appro- 
priation was "for maintaining and improving national cemeteries," 
but recommended that the reward be only for future acts of vandal- 
ism, as it might be doubtful whether a reward offered for past acts 
could be considered as an expenditure for the future maintenance of 
the cemetery. C. 26665, Aug. 10, 1911. 

XIII. The act of December 18, 1897 (30 Stat. 226), appropriated a 
sum of money "to be expended in the discretion and under the direc- 
tion of the Secretary of War for the purchase of subsistence stores, 
supplies, and materials for the relief of people who are in the Yukon 
River country or other mining regions of Alaska, and to purchase 
transportation and provide means for the distribution of such stores 
and supplies * * * i\^q^ ^}^e g^i j subsistence stores, supplies, and 
materials may be sold in said country at such prices as shall be fixed 
by the Secretary of War, or donated where he finds people in need 
and unable to pay for the same." Held that the above act did not au- 
thorize the use of the appropriation to reimburse private parties for 
relief furnished by them to the class of persons for whose benefit the 
act was passed.2 C. 6078, Mar. 2^, 1899; 73U, Nov. 27, 1899; 7483, 
Jan. 9, 1900; 11077, Aug. 22, 1901 . And where a commissary sergeant 
on duty at a camp hired quarters at his own expense, although if ap- 
plication had been properly made the Quartermaster's Department 
could legally have hired quarters for him, Tield that the appropriation 
for barracks and quarters could not be used to reimburse him for the 
sums expended by him in the hire of quarters, C. 7383, Dec. 7, 1899. 

Where an appropriation was made "for repairing monument of 
George H. Thomas Post Numbered Two, Grand Army of the Republic, 
in the San Francisco, California, National Cemetery, three hundred dol- 
lars" (34 Stat. 1347), and the repairs had been voluntarily made by 
George H. Thomas Post, held that as there was no restriction on the 
expenditure of the money and the appropriation , was intended as a 
contribution on the part of the United States to the cost of repairing 
the monument, there was no legal objection to reimbursing the post 
for the repairs. C. 22305, Nov. 1, 1907. 

XIV. Money appropriated for the improvement of rivers and 
harbors is not available for the payment of damages ^ suffered by 
individual citizens on account of injury to their property caused by 
the negligence of the employees of the Government or the defective 
construction of a public work {5Jf. P., 390, July 26, 1892), nor for the 

1 See V Comp. Dec, 119. See Appropriations XI for construction of the words 
"and for other absolutely necessary expenses." 

2 See V Comp. Dec, 257; VIII id., 43, 584; IX id., 688; XI id., 486; IV id., 314, 
409; XII id., 48, 308; XIII id., 783, for decisions relating to reimbursement. 

3 The act of June 25, 1910 (36 Stat., 676), now authorizes the Chief of Engineers, sub- 
ject to the approval of the Secretary of War, to adjust and settle all claims for damages 
to the amount of $500 arising from a collision between a vessel engaged on river and 
harbor work colliding with and damaging aniMlier vessel, pier, or other legal structure, 
and provides that a report on the matter shall be made to Congress for its consideration. 



APPEOPKIATIONS XV. 39 

em])loyment. by the month or otherwise of a civilian physician to 
treat civilian employees of the Government engaged on such works 
of improvement, nor for the payment of damages for personal injuries 
received while on such work \ (O. 1696, Aug. 31, 1895; 23069, Apr. I4, 
1908); nor is an appropriation for the improvement of rivers and 
harbors in the ''district" of a certain Engmeer officer available for 
pa;\ang the expenses of that officer in attending a congress of engineers 
in Paris, the officer having been detailed for that purpose as a represent- 
ative of the Corps of Engineers {55 P., 134, Aug. 20, 1892)] nor is an 
appropriation for the improvement of the Oliio River available for 
the removal of an ice gorge closing a part of the river opposite Cincin- 
nati and threatening the destruction of floating property {57 P., 293, 
Jan. 13, 1893); nor is an appropriation for "improving East River 
and Hellgate; removing obstructions" available for the payment of a 
claim interposed by certain tug owners for personal services in assist- 
ing to put out a ffi'e on a dredge used by the Government in the 
improvement {63 P.,- 386, Feb. 5, 1894); nor is an appropriation for 
"improving" a certain river available for the reimbursement of 
United States employees for losses of personal effects caused by the 
sinldng, without their fault, of a vessel employed in the improvement 
{44 P-, "57, Nov. 25, -1890). But under an appropriation for the 
"improvement of the Yellowstone National Park," held that the 
Secretary of War would be authorized to purchase a bridge, the 
private property of a person who, before the park was reserved, had 
constructed the same over the Yellowstone River on one of the 
principal thoroughfares and where a bridge was indispensable, such 
bridge being in good condition and clearly an "improvement." 
62 P., 15, Oct.. 10, 1893. 

Held that, wliile Engineer officers engaged upon civd works were 
entitled, like other officers on duty, to the allowances of fuel, forage, 
and quarters authorized by sections 8 and 9 of the Army appropria- 
tion act of June 18, 1878 (20 Stat. 150), no part of the appropriations 
specially made for such works by Congress could, in the absence of 
express statutory authority for the purpose, be devoted to the pur- 
chase of fuel for such officers or to the payment to them of the com- 
mutation allowance for quarters.^ 4^ R-, ^4^, July 29, 1878. 

XV. Where an appropriation was made for "a permanent military 
camp of instruction and concentration" at Pine Plains, N. Y., and the 
owners of the property gave an option to the Government agreeing to 
give "a good and sufficient full covenant deed" to their premises, 
free and clear from all rights of dower and from all mcumbrances, but 
without specific reference to furnishing an abstract of title to the 
premises, held that the owners of the property were under no legal 
obligations to furnish an abstract of title, and that the expense of 
procuring abstracts, certificates, and evidence of title and of recording 
the deeds is properly chargeable to the appropriation for the purchase 

1 See to the same effect I Comp. Dec, 62, 181; II id., 347; V id., 943 and 944; VI 
id., 955; VII id., 407; VIII id., 29G; also Cir. 39, A. G. O., Oct. 25, 1900, publishing an 
opinion of Oct. 4, 1900, of the comptroller. 

^ Statutory authority^ now exists for paying commutation of quarters, see act Feb. 27, 
1911 (36 Stat. 957), which provides "That officers of the Corps of Engineers, when on 
duty under the Chief of Engineers, connected solely with the work of river and harbor 
improvements may, while so employed, be paid their pay and commutation of quar- 
ters from the appropriations for the work or works upon which they are employed. " 



40 APPROPRIATIONS XVI. 

of the land ' (C. 25U6, Aug. 26, 1909; 15698, Oct. 5, 1910; 29012, 
Oct. 6, 1911); held, also, that if, under the facts recited above, it was 
necessary to have a survey made of the several tracts of land, the 
expense could be paid out of the appropriation for the purchase of 
the land. C. 25 44^^, Nov. 11, 1909. So, held, as to the expense of 
recording patents, deeds, etc., respecting land through wliich a right 
of way was being acquired by purchase. C. 15698, Oct. 5, 1910. So 
where a claim was made against the United States for real estate taxes 
alleged to be due at the time the United States purchased the land 
and it was necessary to institute a tax search, held that the expense of 
the tax search should be paid from the appropriation from which the 
land was purchased. C. 10027, Feb. 26, 1902. So where certain 
taxes were a lien against land at the time it was acquired by the United 
States. Held that the taxes could be paid from the appropriation 
from which the land was purchased or from a subsequent appropria- 
tion for the same purpose. C. 23913, Dec. 27, 1910. Held, also, 
that an expenditure for abstracts of title from the appropriation for 
the purchase of the property would be valid, notwithstanding the 
fact that after the abstracts had been prepared certain defects in the 
titles were discovered which made it necessary to resort to condemna- 
tion proceedings. C. 2544-6, Feh. 16, 1910. But held that expenses 
connected with proceedings to condemn land for public purposes are 
ordinarily payable from the appropriations made for the Department 
of Justice.2 C. 15110, Mar. 19, 1907. 

XVI. The pubhc resolutions No. 17, 20, and 21 of April 30 and 
May 11, 1908, providing for the relief of persons made destitute by 
storms,^ authorized the Secretary of War to "use such means as he 
has at hand or that may be furnished to him in the way of tents, pro- 
visions, and supplies, to relieve the distress occasioned by such storm 
or cyclone," and further authorized the Secretary to "procure in open 
market or otherwise subsistence and quartermasters' supplies, medi- 
cines, and medicinal aid belonging to the military establishment and 
available," and to issue the same to destitute persons, held that 
under the above resolutions the Secretary could use the funds appro- 
priated to replace stores belonging to the military establishment 
which had been issued to the beneficiaries of the resolutions, and as 
the appropriation was a continuing one purchases to replace the 
stores so issued might be made without regard to the fiscal vear. 
C. 23289, May 22, 1908. And where under the above resolution an 
officer was ordered from his station to Cleveland, Tenn., to carry on 
relief work with directions that when the work was accomplished he 
should report that fact with a view to his being ordered to return to 
his proper station, held that the journey of the officer from his station 
to Cleveland and return constituted ordinary travel in the public 
service, the cost of which would properly be reimbursed by the pay- 

» See III Comp. Dec, 216; VIII id., 212; IX id., 569. But the cost of an abstract of 
title to lands owned by the United States is a lawful charge against the contingent fund 
of the department acquiring the property, V Comp. Dec, 62. See VI Comp. Dec, 
133, as to payment for services of attorney in. preparing abstract of title. 

2 See I Comp. Dec, 317; II id., 201; III id., 216; IX id., 569, 793; X id., 538. See 
also XVI Comp. Dec, 593, holding that when land has been condemned and the court 
in rendering judgment includes in the judgment or award certain costs, such judgment, 
including costs, will be a legal charge against the appropriation to acquire the site when 
the payment of the judgment was made a condition precedent to vesting title in the 
Government. 

' See "Appropriations" XXXVI. 



APPROPRIATIONS XVII. 4l 

ment of mileage; but that the cost of travel and subsistence while 
engaged in administering relief in the district under his charge, not 
being in the nature of travel from one place to another in the opera- 
tion of military orders, but rather an incident of the relief work itself, 
would constitute a charge against the appropriations made by the 
above resolutions.^ C. 23289, May 27, 190S. Held further, that the 
unexpended balance of the funds so appropriated could not be used 
for the relief of sufferers from a flood occurring nearly a year later 
and in a different locality. C. 23289, Sept. 27, 1909. 

•The act of Mav 13, 1902 (32 Stat. 198), made appropriation ''to 
enable the President of the United States to procure and distribute 
among the suffering and destitute people of the islands of the French 
West Indies such provisions, clothing, medicines, and other necessary 
articles and to take such other steps as he shall deem advisable for 
the purpose of rescuing and succoring the people who are in peril and 
threatened with starvation." Held that the above act did not author- 
ize the extending of relief to destitute persons in the Vanish West 
Indies, and lield, further, that it did not authorize the relief of desti- 
tute persons by the payment of money to such persons {G. 13008, 
July 24, 1902); and further lield that the purpose of the act was to 
extend immediate relief and that aid requested almost two years after 
the passage of the act should be refused. C. I6I84, Apr. 19, 1904- 

XVII. The act of March 3, 1911 (36 Stat. 1047), provided "For the 
construction, operation, and maintenance of laundries in Army posts 
in the United States and in its island possessions," Held, in accord- 
ance with the decisions of the comptroller, ^ that the above appropri- 
ation would not be available for the purchase of a post-exchange 
laundry building with its machinery and fixtures belonging to a post 
exchange as the appropriation specifically provided for the construc- 
tion of buildings and would not be available for the purchase of build- 
ings already constructed. C. 15026, Jan. 22, 1912. 

XVIII. There is no legal objection to the expenditure of public 
money in works of improvement on lands to which title has not been 
acquired in the absence of a statute forbidding the same, provided the 
Government will be assured that the benefit of the expenditure will be 
received. So, lield, that an appropriation for the transportation of 
the Army could be expended on a public highway where neither the 
title nor an easement was in the United States ^ {C. 15264, Sept. 12, 
1906; 22355, Nov. 16, 1907; 23041, Apr. 17, 1908); also, held, that 
an appropriation for "Roads, walks, wharves, and drainage" could 
be so expended on a highwav (C. 5843, Mar. 29, 1909), or on a side- 
walk (C. 22191, Nov. 2, 1910). So, where the act of March 3, 1899 
(30 Stat. 1225), appropriated a sum of money for the erection of a 
monument to Sergt. Floyd, there being no words in the act providing 
for the acquisition by the United States of the title to the site on 
which the monument was to be located, lield that the monument 
could be erected without acquiring title to the site. C. 7842, Mar. 20, 

' See "Appropriations" XIX; see also IV Comp. Dec, 86. 

^ See decisions of the comptroller of Nov. 24, 1911, and Dec. 9, 1911. See the con- 
struction of similar language in connection with post exchanges. "Appropria- 
tions" XXIX. 

^ The provision in the sundry civil act making appropriation for repairing roadways 
to national cemeteries, has for a number of years provided "That no part of this sum 
shall be used for repairing any roadway not owned by the United States within the 
corporate limits of any city, town, or village." 



42 APPROPRIATIONS XIX. 

1900. So, where it was desired to extend a levee over certain private 
lands, lield that it was not necessary for the United States to obtain 
the title before constructing the levee, but that an easement in the 
land would be sufficient. C. 5089, Oct. 7, 1898, and Nov. 4, 1898. ' 
So, Tielxl, also, where land was required for laving a pipe line. C. 
14719, Jan. 81, 1908. 

Where the tJnited States owned and had exclusive jurisdiction 
over a military reservation subject to a right of way through the 
same of a public highway, Jield that although the duty of repairing 
public highways for the general benefit of the public rests on the 
proper highway authorities and not on the owner of the soil over 
which the highways run, and although the owner is under a passive 
obligation to permit the public to exercise the right to repair and 
use the land within the limits of the highway for highway purposes 
and not to obstruct the exercise of such rights, 3^et if the repair of 
such a road would be useful for military purposes, the expense of 
such repairing would be a legal charge against the funds pertaining 
to the general appropriation for army transportation of the quarter- 
master's department. C. 3683, Nov. 27, 1897. So, lieU, that such 
a highway running through a national cemetery could be repaired at 
Government expense. C. 20373, Apr. 28, 1910. 

In order to discharge the sewage from the military reservation 
near Jeffersonville, Ind., it was necessary to construct a sewer out- 
side the reservation. The city offered to construct the sewer for the 
sum of $9,658 and to give the Government the perpetual right to 
connect with the city sewer. Held there was no legal objection to 
the proposed expenditure. C. 19416, Mar. 27, 1906; C. 6831, June 24, 
1902. So where it was necessary to construct a sluice gate outside 
a military reservation in order to properly drain the reservation and 
to prevent it from being flooded at high tide, held there was no legal 
objection to purchasing for the sum of $1,000 from the company 
owning the gate the right to drain the water of the military reserva- 
tion through the gate in question and the appropriation for "roads, 
walks, wharves and drainage" could be used for such purchase. 
a 29127, Oct. 17,1911. 

XIX. Where certain officers of the Army were defendants in a cause 
in which the United States was interested, and their defense, before 
the United States court, had been undertaken by the Department of Jus- 
tice, held that, while not entitled to mileage from any appropriation for 
the support of the Army, their necessary expenses in going to, attend- 
ing, and returning from the court constituted a legitimate charge against 
the appropriation "for defraying the expenses * * * of suits in 
which the United States is interested. "1 61 R., 590, Mar. 2, 1887. 

1 The payment of the traveling expenses of these officers was subsequently authorized 
from the appropriation for contingencies of the Army. In XII Comp. Dec, 649, \% was 
held that the actual expenses of officers of the Army in attending, by authority of the 
Secretary of War, upon a State court as witnesses for the United States, in a case in 
which the United States is a party, may be paid from the appropriation for contingent 
expenses of the War Department, and that the appropriation " Transportation of the 
Army " is not properly chargeable. (But see X Comp. Dec, 648.) Circulars, A. G. O., 
Apr. 23, 1887, contains a synopsis of an opinion of the Attorney. General, as follows: 

"To avoid any doubt about the method of payment of the expenses of these officers 
it is better in all cases that when they are the nominal defendants in suits brought 
against them in the official discharge of their duties they should be subpoenaed on 
the part of th ■ Government, who is the party in interest, to appear as witnesses." 

See, also, par. 75, A. K., 1910. 



APPEOPRIATIONS XX. 43 

Held, that the appropriation for the recruiting service— "for ex- 
penses of recruiting and transportation of recruits" — was not avail- 
able for the payment of mileage of officers for travel while on recruiting 
service,' but that the same was chargeable to the general appropriation 
for the mileage and cost of transportation of officers.^ P. 4-1 , 105, May 
29, 1890. But where a specific appropriation is made for a work of 
improvement and travehng expenses are incurred in the supervision 
or execution of such work, the assumption would be that Congress 
intended the appropriation for the improvement to be exclusive and 
that it could not be supplemented from other appropriations. So, 
held, where an appropriation was made for increasing the water 
supply at West Point and it was necessary^ for the engineer officer 
in charge to travel in connection with the inspection of water pipe 
and the examination of land records, etc.^ G. 164-59, June 16, 1904. 
So the expense of travel required in connection wdth the manufacture 
and inspection of torpedoes would not constitute a charge against 
the mileage appropriation of the Army, but would be a charge against 
the appropriation for the ' ' Purchase of submarine mines arid neces- 
sary appliances to operate them." C. 13728, Bee. 1, 1902. 

The joint resolution of February 24, 1911 (30 Stat. 1457), provided 
for an investigation by a commission of Army officers as to the 
availability of certain grounds for maneuver purposes, and added 
"that the said board or commission shall serve without compensa- 
tion, but shall be paid actual necessary expenses." Held that the 
"actual necessary expenses" are chargeable against the proper Army 
appropriations, and that the effect is to suspend, as to that particular 
case, the operation of the laws under which mileage allowances are 
paid, and to substitute for such allowances "actual necessary ex- 
penses." C. 28005, Mar. 22, 1911. 

XX. Held that the transportation expenses of officers and enlisted 
men and of their mounts to enable them to attend an international 
horse show in London, England, might be paid from Army appro- 
priations. C. 28017, Mar. 24, 1911.^ 

* See opinions of 2d Comptroller Gilkeson in Digest of Decisions of 2d Comp., Vol. V, 
sec. 813, holding that mileage due a recruiting officer for travel performed is payable 
from the appropriation "Pay, etc., of the Army." "Payment from the appropriation 
' Expenses of recruiting ' is improper under the well-established rule that where Con- 
gress has made a specific appropriation for any purpose the use of any other appro- 
priation is thereby precluded." 

^ See par. 1529, A. R. , 1910, as to the mileage of engineer officers on service connected 
with fortifications or works of public improvement. See "Appropriation, " XVI. 

^See par. 14, S. 0. 254, War Dept., Nov. 10, 1910, ordering certain officers and 
enlisted men to duty pertaining to an international horse show in New York. "\ATiere 
certain officers and enlisted men were ordered to Pimlico, Md., in connection with 
a race known as the ' ' Army officers service cup race, ' ' the transportation involved was 
approved by the Comptroller in an unpublished opinion under date of Dec. 19, 1910, 
as follows: "The questioning the availability of the appropriation is solely because 
of the pm-pose for which the shipment was made and goes to the discretion of the 
department in ordering the shipment as public business. 1 personally may not 
countenance attending or participating in a horse race and may not perceive what 
in co^nnection with the Army may be there achieved, but I apprehencl races are run 
at military posts and that under other Governments the military participate in races. 
It is for the Secretary of War to determine the policy of the War Department in this 
respect. WTiether the piu-pose in the present case was one tending to the efficiency 
of the Army was none the less the exercise of a legal discretion because of the place 
where the race was to be run. The commanding officer reported it as a matter of 
special military interest and of regimental and Army importance generally, and the 
approval of the Secretary of War, reported by the Adjutant General, was a determina- 
tion that it tended to the efficiency of the Army enough to justify shipping the horses 



44 APPEOPRIATIONS XX. 

AVliere a considerable force of troops, constituting an organized 
command, under the command of a major general, was being trans- 
ported from New York to Manila via the Suez Canal, and at several 
ports where the transport touched certain official calls were made, 
necessitating the employment of carriages, lield that the carriage 
hire was a proper charge against the appropriations for the Quarter- 
master's Department. C. 25821, Nov. 22, 1909. 

The appropriation for the transportation of the Army should 
bear expenses incurred under the following circumstances: The cost 
of transportation of baggage of an officer ordered to report for duty 
pertaining to the mounting of a gun to be exhibited at the Pan 
American Exposition at Buffalo, the duty being considered as 
military (6'. 10587, June Ji-, 1901); the expense incident to the move- 
ment of a company of Coast Artillery to another station in connection 
with the Pan American Exposition at Buffalo, the movement being 
treated as military in its nature {C. 10825, July 16, 1901); the cost 
of transportation of the battalion of cadets of the Military Academy 
to the Pan American Exposition at Buffalo (C. 10863, July 16, 1901) ; 
the cost of transportation of an insane general prisoner from his 
place of confinement to the Government Hospital for the Insane at 
Washington {CI 20052, July 13, 1906); the cost of dredging to enable 
troops and supplies to be landed at a Coast Artillery post (O. 24002, 
Oct. 23, 1908); a claim for salvage as general average against Gov- 
ernment property being transported in a private vessel (C. 17725, 
Mar. 31,' 1905; 26396, Mar 24, 1910). But where a soldier was 
arrested by the civil authorities at a military post and transported 
to a distant point and there, after examination by the civil authori- 
ties, discharged, held that the expense of returning him to his proper 
station was not a charge against the appropriation for Army trans- 
portation. C. 2529, Mar. 20, 1911. Also w^here an appropriation 
was made for the construction of a particujar set of quarters in 
Alaska, and the Government purchased the material on Puget Sound, 
and the question arose as to what appropriation should bear the 
expense of transportation to Alaska, held that the cost of transporta- 
tion should not be paid from the appropriation for the transportation 
of the Army, but from the appropriation for the construction of the 
quarters. C. 18314, '^^^Ml 21, 1905. So where in inviting bids for 
the construction of a building in Alaska, it was agreed to transport 
the building material of the contractor free of charge from Seattle, 
held that the cost of transportation of such material should be paid 
from the appropriation for the construction of the building. C. 
25056, June 5, 1909. 

The decision as to whether the cost of providing and maintaining 
means of transportation between individual batteries at seacoast 
forts, or between the posts and the several batteries at those posts, 
or between a. wharf and the batteries, should be charged against the 
appropriation for fortifications or against the appropriation for 
transportation of the Army, should as a general rule be controlled by 
this consideration — that where the means of transportation is planned 
as an integral and inseparable part of the project, and for such rea- 
sons appropriate to be placed under the exclusive control of the 

there at Government expense. Under that authorization I view the shipment as 
public business, for the payment of which the appropriation 'Transportation of 
the Army and its supplies' is available. To say otherwise would be an arbitrary con- 
clusion unsupported by any definite facts. So much as to the availability of the 
appropriation." 



APPKOPEIATIONS XXI. 45 

combatant force, the cost of construction and maintenance is proj)- 
erly chargeable to appropriations for fortification purposes; but 
wliere these considerations do not predominate and the work is done 
primarily as a means of transportation, the necessary funds should 
be drawn from the appropriation for Army transportation.^ C. 
13998, Feb. 17, 1903. 

Held that the expense of mining coal at a Government coal mine, 
carrying it to tide water, and transporting it to the place where it 
would be used, should be charged against the appropriation for 
'' Transportation of the Army." C. 21659, Oct. 12 and Nov. 10, 1908. 

XXI. The Army appropriation act, under the head of ''Incidental 
expenses of the Quartermaster's Department," ^ appropriates for 
certain specified objects and for ''such additional expenditures as are 
necessary and authorized by law in the movements and operation of 
the Army and at military posts." Held that the phrase "authorized 
by law" refers to statutory authority^ and that therefore the rental 
of a piece of ground for light artillery practice, not havmg been 
authorized by law, can not be paid from the appropriation for inci- 
dental expenses, but that the expense would be a legitimate charge 
against the appropriation for contingent expenses of the Army, as the 
latter appropriation covers expenses "not provided for by other 
estimates." 62 P., 208, Nov. 2, 1893. So where it was desired to 
cut down trees on private property adjoining a fort, the trees maskmg 
a portion of the field of fu'e of the fort guns at approaching maneuvers, 
held that as the expenditure was cleai'Iy necessary and as it had to do 
with the instruction of the garrison in the use of armament provided 
by law, it should be regarded as "authorized by law" within the 
meaning of the clause providing for incidental expenses. C. 18108, 
June 6, 1905. 

XXII. The appropriations for the support of the Army and those 
for the support of the Military Academy are distinct and separate, 
and funds appropriated for the former can not be used to defray the 
expenses of the latter; but as West Point is at one and the same time 
a military post and a military academy, appropriations for the sup- 
port of the Army can be expended for strictly Army purposes at 
the Military Academy.* Therefore, an appropriation for the sup- 
port of the Army for "barracks and quarters" is available for the hire 
of extra-duty labor for repairs to post buildings at West Point. C. 
11106, Aug. 27, 1901. Also the general appropriations for the sup- 
port of the Army for "water and sewers, military posts," from which 
apparatus for extinguishing fires at military posts is usually pur- 
chased, is available for the purchase of fire extinguishers to be used at 
W^est Point. C. 28776, July 29, 1911. Also an appropriation for the 
support of the Army for "construction and repair of hospitals of mili- 
tary posts already established and occupied" is available for the 
installation of a sanitary closet and bath fixtures at the "soldiers' 
hospital" at West Point. C. '13471, Oct. 16, 1902. But the appro- 
priation for the support of the Ai"my would not be available to pay for 
the services of an archliect to prepare plans for a building at West 
Point. C. 10689, June 17, 1901. >Tor to supplement the appropria- 
tion for the master of the sword, the pay of that officer being provided 
for by the appropriation for the Military Academy, and that appro- 

» See XIII Comp. Dec, 559. ^ xv Comp. Dec, 740. 

2 See "Appropriations," XXXIX. * V Comp. Dec, 812. 



46 APPROPRIATIONS XXIII. 

priation being through error insufficient to pay the full amount 
authorized by lav/. C. 18009, May 18, 1905. 

Fort Bayard, N. Mex., although designated in orders as a general 
hospital, continues to be a military post, and the appropriation in the 
act of March 2, 1903 (32 Stat., 937), "for construction of quarters for 
hospital stewards at military posts established and occupied" is avail- 
able for the construction of quarters for hospital stewards on duty at 
Fort Bayard. C. 14894, July 1, 1903. 

Where the appropriation for the construction of the War College 
had become exhausted and it was still necessary to do certain grading 
about the grounds, remove rubbish, and police the grounds, and make 
certain underground electrical conner-tions, held that as the W^ar Col- 
lege was located at Washington Barracks, a mihtary post, and was 
intended for the instruction of officers of the Army, the expense of 
the above work could be paid for out of the general apiiropriations 
for the support of the Army. O. 20719, Jan. 30, 1907. So, also, 
where it was necessary to rephxce the electric light main leading to the 
War College with one having heavier insulation, and it appeared that 
the entire cable was outside the War College building and was a part 
of the post lighting system, Jield that for the reasons given above, the 
expense could properly be charged against the general appropriations 
for the Army. _ C. 20719, July^9, 1907. 

XXIII. Section 214 R. S. provides that "There shall be at the seat 
of Government an executive department to be known as the Depart- 
ment of War, and a Secretaiy of War, who shall be the head thereof." 
In a general way it may be said that the Department of War comprises 
within its administrative forces a number of offices called the bureaus 
of the War Department. These bureaus represent the civil side of 
the military administration, and their clerks and certain of their sup- 
plies are appropriated for by Congress in the appropriation for the 

Legislative, executive, and judicial" expenses of the Government. 
Such are the offices of The Adjutant General, Quartermaster General, 
Commissary General, etc. While these bureaus, so far as their clerical 
forces and all nonmilitary persons connected therewith are concerned, 
are supported by an appropriation in a civil bill, the officers of the 
Army attached to these bureaus are paid under the appropriation for 
the support of the Army. C. 21587, Mar. 10, 1911. As the contingent 
expenses of the Board of Ordnance and Fortification are provided for 
in the fortification bill this board should not be considered as an inte- 
gral part of the War Department and telephone service for the board 
would not be a charge against the appropriation for "Contingent 
expenses of the War Department," but should be made against the 
appropriation for fortifications. C. 14377, Mar. 28, 1903. 

XXIV. The appropriation for "Contingencies of the Army" ^ is 
restricted in its operation to cases arismg in the administration of the 

_ 1 For many years prior to the act of April 23, 1904 (33 Stat. 259), making appropria- 
tion for the support of the Army for the year 1905, the wording of the act of appropriation 
for the contingent expenses of the Army was "for all contingent expenses of the Army 
not provided for by other estimates, and embracing all bitmches of the military service, 
to be expended under the immediate ordprs of the Secretary of War. " Since that date 
the wording has been as follows : ' ' For all contingent expenses of the Army not otherwise 
provided for, and embracing all branches of the military service, including the office of 
the Chief cf Staff, to be expended under the immediate orders of the Secretary of War. " 
Under sec. 3683 R. S. the expenditure fi-om contingent funds must be authorized by 
the head of the department prior to incurring the expenses. I Comp. Dec, 566; II id. 
1. This appropriation is also available for paying, the compensation of reporters before 
examining boards. 



APPROPRIATIONS XXIV. 47 

Army proper as distinguished from other estabHshments, such as the 
Mihtary Academy, the needs of which are made the subject of a 
separate act of appropriation. To warrant expenditures from the 
appropriation for the "Contingencies of the Aj-my" the object of 
expenditure, first, must be one that is necessary, useful, or appropriate 
to tiie Army proper; second, must have the character of an incidental, 
casual, unforeseen, or emergency expense ; and third, must not come 
witliin the sco])e of any other appropriation for the support of the 
mihtary establishment. ^ _ G. 7030, Sept. 18, 1899; 27^15, Oct. 27, 
1910. Under the foregoing rules, lield, that the expenditure could 
properly be made from the appropriation ''Contingencies of the 
Army" in the following cases: For carriage liire in connection with 
the funeral of a President, in view of the fact that he was tJie 
constitutional Commander in Cliief of the military forces {C. 11438, 
Oct. 23, 1901); for the expense of engraving and lettering two Span- 
ish cannon captured at Santiago, wliich had been presented to the 
city of San Francisco {€. 10443, June 1, 1901); for the traveling and 
other expenses of the Assistant Secretary of War in connection with 
awarding the national trophy, medals, and other prizes contested 
for annually and provided for in the act of March 2, 1903 (32 Stat. 941) 
{C. 14668, May 11, 1903); for the expense connected with the erec- 
tion of certain appliances for field sports for the use of troops assem- 
bled at St. Louis to participate in the ceremonies incident to the 
dedication of the World's Fair {C. 14991, July 24, 1903); for the 
]iayment of a bill presented by a justice of the peace who on request 
furnished a post commander with a statement of the offenses, results 
of trial, etc., in the cases of three soldiers tried before him {0. 14856, 
June 26, 1903); for the employment of a secretary or clerk to the 
Panama Fortification Board appointed by order of the War Depart- 
ment {C. 26071, Jan. 15, 1910); for witness fees and mileage of a 
witness a])pearing before an Army officer who had been detailed to 
collect certain information concerning the violation of the neutrality 
laws {C. 28241, June 20, 1911); also for the expenses of a witness 
appearing before an Armv officer detailed to investigate an alleged 
theft by a soldier froni a civihan (C. 28033, Mar. 28, 1911); 
for the expense connected with the service of a summons upon a 
distant witness who was required to appear before an Army officer 
detailed to investigate an alleged theft by a soldier from a civilian 
(C. 28033, Mar. 28, 1911); for supplies furnished troops wliile fight- 
ing a forest fire under orders, the issue of such supplies ha^dng been 
considered necessary under the circumstances (C. 27395, Oct. 22 and 
Dec. 8, 1910); for the salary and expenses of a member of the Secret 
Service of the Treasury Department detailed to assist the military 
authorities to discover certain frauds committed in connection with 
the mihtary establishment {€. 18866, Nov. 24, 1905, May 23, 1906, 
and Aug. 20, 1909); for the expenses incident to the journeys of a 
civihan lecturer for the Artilleiy School, Fort Monroe ^ {C. 14278, 
Mar. 21, 1903); for the expenses, including attorney's fees, of a civil 

1 IVComp. Dec, 287; V id., 151. 

'■^ See XII Comp. Dec, 519, holding that "The appropriation for the United States 
service schools is applicable for the payment of the travel expenses of a civilian inciu-red 
in the delivery of a series of lectures before the Infantry and Cavalry School and Staff 
College at Fort Leavenworth, Kans., the notes of which are to remain as a textbook for the 
instruction of subsequent classes. " See also XVI Comp. Dec, 845. 



48 APPROPRIATIONS XXIV. 

employee incurred by liim in connection with his arrest for an act in 
the hne of his duty ^ {C. 8972, June 18, 1909) ; for the exnense to an 
Army ofhcer of providing a bond where he was sued for damages for 
an injury to a person run over by a Government ailtomobile in wliich 
he was travehng on official business {C. 28517, July 10, 1911); for the 
removal of the bodies in an Indian cemetery, the removal being made 
necessary by the erection of buildings as a part of a military post 
{C. 22657, Jan. 22, 1908); for the services and expenses of a civilian 
who returned to liis proper station an insane soldier, supposed to be a 
deserter, found wandering about at a distance from his post {C. 1^07, 
June 3, 1895, and Oct. 28, 1910; 13776, Dec. 9, 1902) ; for the services 
and expenses incurred by a civil officer pursuant to request of the 
military authorities in apprehending a soldier supposed to be a 
deserter but who in fact was not such and was not held out as such 
by the military authorities, and no reward for his apprehension as 
a deserter therefore could legally be paid {C. 17327, Apr. 29, 1907, 
Mar. 25 and Apr. 8, 1908, and Jan: 8, 1909, Nov. 23 and Dec. 10, 
1910) ; for the payment of a reward promised or expenses incurred 
on request, in addition to the reward for desertion where the soldier 
was not only charged with desertion but with embezzlement or other 
crimes 2 {C. 16578^ July 18, 1904; 17327, Aug. 25, 1909); Jot the pay- 
ment of a reward to ascertain the origin of certain suspicious fires that 
had occurred at a mihtaiy post {C. 28784, July 31,1911); for the pur- 
chase of a map to be used in connection with a progressive military map 
of the United States, a, dispute having arisen between the officer obtain- 
ing it and the owner as to whether it was donated or not {C. 29303, 
Dec. 13, 1911); for the repayment to a contractor of the insurance 
prepaid by him upon ^n Armstrong gun transported to the United 
States {53 P., 80, Apr. 7, 1892); for payment for the services of an: 
expert bookkeeper in making an examination of the books of an 
officer charged with a criminal offense before a court-martial in order 
to qualify the expert to testify before the court-martial as a witness 
(C. 4960, Sept. 23, 1898; 5718, Jan. 30, 1899); for the board and 
lodging of a deserter who had been turned over to the police of the 
city by an Army officer for safekeeping until the arrival of a military 
guard {C. 8585, July 13, 1900; 8742, Aug. 10, 1900) ; for payment of a 
reasonable compensation to a person who carried a message to the 
regular and insurgent forces of Mexico operating close to the American 
border, the message being sent from the commanding officer of the 
American troops who were guarding the border to prevent violations 
of neutrahty (C. 22132, May 3, 1911); for payment for services 
rendered and expenses incurred as secret agent for a military attache 
of the United States during the Spanish War (C. 5130, Oct. 15, 1898) ; 
for the payment of a reasonable compensation to a civihan official 
or private civilian for the purpose of serving a summons or sub- 
poena in connection with the trial of a case by court-martial (the 
fees or expenses of su.ch service would not be a charge against the 
appropriation for expenses of courts-martial, courts of inquiry, etc.), 
in a case where the service could not have been otherwise so effect- 
ually and economically made {R. 43, 284, Apr. 10, 1880; 53, 399, 

1 XV Comp. Dec, 621. = xi Comp. Dec, 124; XVI id ., 132. 



APPROPRIATIONS XXIV. 49 

A'pr. 29, 1887; 32 P., 365, May 20, 1889; 51, 407, Jan. 23, 1892; 
C. 5549, Bee. 20, 1898; 13418; Oct. 9, 1902); for payment of the 
expenses of maintenance (including the payment of $5 and the fur- 
":iishing of a suit of civilian clotliing on discharge) of an officer serv- 
ing a court-martial sentence in a State penitentiary^ (0. 16023, Ayr. 
2, 1904; 16238, Feh. 3, 1905). 

Held that an appropriation ''for shelter, shooting galleries, ranges, 
repairs, and expenses incident thereto" was intended for target prac- 
tice with small arms, and would not cover the rental of a piece of 
ground for artillery practice, but that such rental, being of small 
amount (i. e., for the occupation of the ground for a few days only), 
might properly be considered a legitimate charge against the appro- 
priation for the contingencies of the Army. 62 P. 209, Nov. 2, 1893. 

As the appropriation for contmgencies of the Army is to meet neces- 
sary and appropriate expenses m connection with the Army "not 
otherwise provided for," this appropriation is not available anymore 
than is any other general appropriation, to supplement a specific appro- 
priation for furnishing certain supplies or rendering certain services.^ 
C. 12521, July 24, 1902; I4II3, Oct. 22, 1903. So, where a sum was 
appropriated for repairs to the old Ford Theater buildmg and this 
amount was found to be msufficient, lield that the appropriation for 
Army contingencies could not be usecl to supply the deficiency. 62 P. 
74, Oct. 19, 1893. The Ai^my appropriation act, approved August 6, 
1894 (28 Stat., 236), provided for the employment of clerks and mes- 
sengers in several designated offices and provided for "not exceeding" 
125 clerks at various indicated salaries and 45 messengers at a certain 
salary and provided that all were to be employed and apportioned to 
the several headquarters and stations by the Secretary of War. Two 
clerks in excess of the authorized number were employed for a short 
time. Held, that the act appropriatmg salaries for the 125 clerks 
amounted to a provision of law that no more than that number should 
be employed on the work specified in the act, and hence prohibited the 
employment or payment of the two extra clerks from such appropria- 
tion,^ and lield further, the two extra clerks could not be paid from the 
contingent fund as such fund is for expenses of the Ai^my "not other- 
wise provided for," while the employment of clerks not in excess of a 
certain number is expresslv "provided for" in the specific appropria- 
tion. C. 295, Sept. 15, 1894. 

In the following instances the expenditure was held not to be 
chargeable against the appropriation for contingencies of the Army: 
For medical treatment of a civil employee mjured on work being car- 
ried on for the benefit of the District of Columbia, the reason being 
that the appropriation for contingencies of the Army is for "all 
branches or the military service," while the work that the employee* 
was engaged in was not of a military character, and the person for 
whom the medical treatment would be furnished would not be an 
officer, soldier, or military employee, but would be a civilian laborer 

^ In this case, as the confinement was for only one year, it could not be executed in 
the United States Penitentiary at Fort Leavenworth. 
^ See "Appropriations" X. 
3 See I Comp. Dec, 291; VIII id. 27. 

93673°— 17 4 



50 APPROPRIATIONS XXV. 

(44 P. 358, Bee. 23, 1890) ; for the burial expenses of a civilian employee ^ 
{C. 7030, Sept. 18, 1899; 16757; Aug. 16, 190^; 17563, Feh. 15, 1905; 
for damages to private property caused by ice falling from the roof of 
a public buildmg under the control of the War Department (52 P. 
4-8, Feh. 6, 1892) ; for expenses incurred in transporting Canadian half- 
breed Indians from Montana to Canada ((7. 5816, Feb. 4, 1899). As 
the United States is not legally responsible for the torts of its officers 
or agents the Secretary of War could not authorize from the appropria- 
tion for ''all contingent expenses of the Army not otherwise provided 
for/' the payment of damages as compensation for personal mjury 
to a native Filipino accidently shot on a rifle range.^ C. 27214, Aug. 
27, 1910. 

The payment of copyists employed in the bureaus of the War 
Department out of the appropriation for Army contingencies would be 
an expenditure for clerical compensation and is therefore prohibited 
by sec. 3682 K. S. C. 1154, Mar. 25, 1895. 

It is questionable whether the expense of selling a portion of a 
military reservation under an act of Congress can be regarded as an 
expense pertaining to the Army within the meaning of the appropria- 
tion "for all contingent expenses of the Army." C. 22572, May 15, 
1911. 

XXV. The Army appropriation act, provided "for expenses of 
courts-martial ^ and courts of inquiry and compensation of witnesses," 
lield that the expenses of a witness belonging to the Navy or Marine 
Corps incurred in attending an Army court-martial was a proper 
charge against the above appropriation. C. 17465, Jan. 31, 1905. 
So, held, that the cost of railroad tickets for an indigent witness to 
enable him to attend a court-martial, might be paid from the above 
appropriation, the amount paid to be noted on the witness vouchers 
with a view to its deduction in final settlement of their accounts. 
C. 22915, Mar. 30, 1908. So, held, also, as to the legal fee of the 
proper official for a certified copy of a marriage certificate, necessary 
to be used in evidence in a case of trial before a court-martial. P. 19, 
423, Oct. 8, 1887; C. 17929, May 2, 1905. So, held, also, as to the 
expense of procuring a transcript of a stenographer's notes of testi- 
mony taken before a U. S. Commissioner in a matter necessary 
to the prosecution of a soldier before a general court-martial. C. 
17929, Jan. 21, 1911. And so, held, as to the expense of employing 

1 The act of June 7, 1897 (30 Stat. 86), provides that: "Hereafter the heads of depart- 
ments shall not authorize any expenditiue in connection with transportation of remains 
of deceased employees except when otherwise specifically provided by law. " See, 
also, pars. 501 and 502, A. R., 1910; also, VI Comp. Dec, 447, where it is held, quoting 
from the syllabus: "The appropriation for incidental expenses of the Quartermaster's 
"Department is applicable to the expense of buryinSj the remains of a deceased civilian 
employee of that department, where such burial is necessary for the prevention of 
unsanitary conditions, but not otherwise. " See also, the opinion of the comptroller 
of Oct. 4, 1900, published in Cir. 39, A. G. O., Oct. 25, 1900. 

2 Although such claims have been repeatedly brought to the attention of Congress, 
that body has failed to appropriate for their payment. (See "Claims. ") 

^ As sec. 1248, R. S., confers upon retiring boards certain powers of a court-martial 
and a court of inquiry, it is the practice to charge against the annual appropriation for 
expenses of courts-martial, etc., the payments for reporters employed on retiring 
boards. 

The compensation of reporters for examining boards who have been employed by 
proper authority is a charge against the appropriation for contingencies of the Army. 



APPROPRIATIONS XXVT. 51 

a reporter for a court of inquiry convened at the Military Academy 
to inquire into the hazing of cadets, as cadets are a part of the Army. 
C. 6971, Sept. 2, 1890. So, held, also, as to the fees of a notary for 
swearing a witness in the taking of a deposition. C. 13418, Mar. 29, 
1911. But where an officer who served a subpoena made affidavit 
of the service before a notary, the affidavit being wholly unnecessary, 
Jield, the expense should be charged against the officer. C. 134-18, 
Feh. 11, 1908. But held that the above appropriation referred to 
compensation of civilian witnesses only, and did not apply to retired 
officers of the Army ordered to appear as witnesses before courts- 
martial. P. 28, 291, Nov. 24, 1888. Held, further, that although 
a summons or subpoena may legally be served either by a military 
or a civil person,^ but will in general preferably be served by an officer 
or noncommissioned officer of the Army, yet as there is no express 
authority for the employment by a judge advocate of a United States 
marshal or other civil official or civilian for the purpose of serving a 
summons or subpoena, the fees or expenses of such a person in con- 
nection with the service would not be a proper charge against the 
above appropriation, but advised that in a case where the service 
could not have been otherA\dse so effectually and economically made 
a reasonable compensation might be paid from the appropriation for 
contmgencies of the Army. R. 43, 284, Apr. 10, 1880; 53, 399, Apr. 
29, 1887; P. 32, 365, May 20, 1889; 51, 407, Jan. 23, 1892; C. 5549, 
Bee. 20, 1898; 13418, Oct. 9, 1902. The expense of a witness belong- 
ing to the Army incurred in attending a naval court-martial is not a 
charge against any appropriation for the Army. C. 17465, Sept. 3, 
1909. 

XXVI. Telegrams containing applications for leaves of absence, for 
extension of same and inquiries as to whether they have been granted, 
independently of par. 1209, A. R. (1203 of 1910), are not ''telegrams 
on official business" within the meaning of the act making an appro- 
priation for payment of ''cost of telegrams on official business," and 
can not therefore be paid for from that appropriation.^ C. 6935, 
Sept. 6, 1899. But where two soldiers, one absent on sick furlough 
and the other on account of reenlistment furlough, applied to the post 
commander for an extension of their furloughs, and that officer not 
having the authority to act, wired the department commander for 
such authority, held that the telegram was sent on official business.^ 

' See G. O. 93, Headquarters of the Army, Nov. 9, 1868. 

2 Referring to tliis case the Comptroller in VI Comp. Dec, 422, said: "It requires 
no argument to show that leaves are granted for the benefit of the persons and that 
any cost relating thereto should not be borne by the United States. I have to advise 
* * * that said telegrams shquld not be paid for by the United States." 

Where a brigade surgeon, U. S. V., in charge of a hospital at Philadelphia, Pa., 
sent certain telegrams with a view to obtaining leaves of absence for officers in said 
hospital who were convalescent to enable them to go to their homes and thus relieve 
the hospital of their care and enable it to retain accommodations for others of the sick 
who might be sent there for treatment, the Secretary of War, under date of Nov. 17, 
1899, said: "The sending of such telegrams under the circumstances is viewed as not 
only an official act performed in pursuance of duty, but as also in the interests of the 
military service, and is not regarded as subject to the provisions of par. 1209 A. R. 
(1203 of 1910), which are held as applying to applications for personal leaves and 
therefore does not come within the scope of the opinion of the Comptroller of the Treas- 
ury and the Judge Advocate General of the Army." 

^ See XIV Comp. Dec, 940, approving this opinion. 



52 APPEOPKIATIONS XXVIII. 

C. 23362, June 4, 1908. And, also, leld, that par. 1196 A. R. (1203 
of 1910) does not apply to a telegram requesting extension of a sick 
leave, and that such a telegram is on official business. C. 23362, Apr. 
16, 1910. 

A post surgeon wired to his official superiors requesting that an 
assistant surgeon at the post, who was under orders to change station, 
be retained on duty at the post on account of illness in the families of 
certain officers; held that the telegram was on official business. C. 
17871, Apr. 21,1905. 

Held, that telegrams sent and received by the governor and 
adjutant general of New Mexico and by the commissioned officers 
in the United States Volunteer Army, and which relate to recruiting 
organizations of the Volunteer Army of the United States raised in 
New Mexico are "official" and may be paid for as telegrams sent and 
received in carrying on official business of the Government, out of 
the appropriation in the Quartermaster's Department made for that 
purpose, and at the rates fixed for other official telegrams. C. 4670, 
July 26, 1898. 

The cost of telegraphic messages over the lines of commercial 
companies on post exchange business is not a proper charge against 
the appropriations for the payment of telegrams on oflicial business. 
C. 19479, Mar. 26, 1900. 

XXVIII. The act of April 28, 1904 (33 Stat. 496), appropriated 
money " for the purchase of suitable building sites for said barracks 
and quarters"^ for artillery at seacoast defenses; held that the term 
"barracks and quarters" as used above should not be so restricted in 
its application as to relate exclusively to the company barracks and 
officers' quarters, and to withhold authority for the purchase of land 
upon which to erect the other buildings, such as the guardhouse, 
hospital, headquarters' structures, post exchange, blacksmith and 
carpenter shops, etc., which are necessary to the administration of a 
military post. Such appropriation can therefore be used to purchase 
a site for a pump house separated from the main post,^ C. 14719, 
July 14, 1904' But the language "barracks and quarters" does not 
cover the construction of a chapel at a military post. C. 21783, 
July 12, 1907. 

The act of June 30, 1902 (32 Stat. 516), under the head of "Bar- 
racks and quarters, Philippine Islands," appropriated "for the proper 
shelter and protection of officers and enlisted men of the Army of the 
United States lawfully on duty in the Philippine Islands, including 
the acquisition of title to building sites where necessary, to be 
expended in the discretion of the President." Held that the words 
"proper shelter and protection " included something more than the 
mere quarters for officers and barracks for enlisted men. It would 
include also hospitals, guardhouses and storehouses, as all these 
buildings, although incidental to the purpose of the appropriation, 
are as necessary to the proper shelter and protection of the troops as 
are the structures erected for the mere livmg accommodations of the 
officers and enfisted men. C. 13065, Aug. 4, 1902; 14955, July 17, 
1903. 

1 See "Appropriations" XIII, XX, XXII, and XXX. 

2 But see- V Comp. Dec, 706, where the phrase "barracks and quarters" was held 
not to include separate buildings for hospitals, storehouses, shops, stables, etc., nor 
sewers, water supply, roads or walks. 



APPEOPEIATIONS XXIX. 53 

The act of May 11, 1908 (35 Stat. 121), appropriating for "Barracks 
and quarters, Philippine Islands," provided for the proper shelter 
and protection of olhcers and enlisted men "and all other buildmgs 
necessary for post administration purposes"; held that the quoted 
language would cover the erection of a building for a post office at 
Fort Wniiam McIGnley. C. 24671 , Mar. 24, 1909. 

Sec. 1136 R. S. provides that "permanent barracks or quarters 
and buildings and structures of a permanent nature shall not be 
constructed unless detailed estimates shall have been previously 
submitted to Congress, and approved by a special appropriation for 
the same, except when constructed by the troops ; and no such struc- 
tures, the cost of which shall exceed twenty thousand dollars, shall be 
erected unless by special authority of Congress." In practice this 
section has been construed to permit of the construction out of the 
annual appropriation for "barracks and quarters" of permanent 
buildings, at a cost not to exceed S20,000, although no detailed 
estimates "have been previously submitted to Congress, and approved 
by a special appropriation for the same," and also to permit of the con- 
struction of more than one permanent building at a particular post 
for the same purpose, even though their aggregate cost should exceed 
$20,000. In view of the apparently contradictory provisions of the 
section, advised that the construction which it has received in practice 
be adhered to.^ C. 6985, Sept. 8, 1899. 

Where a building had been erected at the sole cost of a 
post exchange, there being no contribution toward its construction, 
either in money or material by the Quartermaster's Department, 
held that the appropriation "Barracks and quarters" could legally 
be expended for the purchase of the building. 0. 27238, Sept. 9, 1910. 

The act of June 22, 1874 (18 Stat., 144), provided that "hereafter 
no contract shall be made for the rent of any building or part of any 
building in Washington not now in use by the Government to be used 
for the purposes of the Govermnent until an appropriation therefor 
shall have been made in terms by Congress." Held that the appro- 
priation for the support of the Army for "barracks and quarters" 
can be used for providing in the city of Washington rooms for the 
use of the dental board of examiners, as the above legislation was not 
intended to limit or restrict the President in his control of the military 
establishment.- C. 10561, May 29, 1901. 

XXIX. The appropriation for post exchanges, which provides for 
the "construction, equipment, and maintenance of suitable buildings 
at military posts and stations for the conduct of the post exchange, 
school, library, reading, lunch, amusement room and gymnasium," 
and which is expended "in the discretion and under the direction of 
the Secretary of War," being intended to serve a very broad purpose, 
should be liberally construed, and is, therefore, held to cover the 
construction of fences, grand stand, seats, etc., for an athletic field 

1 The U.S. Sup. Ct. will accept the department's uniform construction of a doubtful 
or obscure statute, but where the departmental construction has not been uniform 
the court will determine for itself the true interpretation. U. S. v. Healey, 160 
U. S. 136. 

2 From time to time accommodations have been rented in the city of Washington 
for the purpose of carrying on the recruiting of the Army, for the use of courts-martial 
and boards for the subsistence depot and for stables for the quartermaster's depot, etc., 
notwithstanding the absence of any appropriation by Congress "in terms" lor these 
purposes. 



64 APPKOPRIATIONS XXX. 

{C. 14970, May 13, 1907); the laying out of golf links at a post 
(C. 14970, Dec. 8, 1908); the purchase of apparatus for outdoor as 
well as indoor athletics {0. 14970, Jan. 30, 1909); the expense of con- 
structing a fence for a deer park {C. 22337, Nov. 7, 1907), and could 
legally be expended for the purchase from a post exchange of a 
building erected by it for post exchange purposes^ {C. 13365, Sept. 29, 
1902; 15026, July 29, 1903; 26607, Apr. 29, 1910). But as the 
appropriation is for huildings, held that it would not cover an expendi- 
ture for a tent in which to quarter temporarily the post exchange 
during Army maneuvers {C. 25057, June 5, 1909), nor would it cover 
the purchase of polo balls and mallets (C 25575, Sept. 17, 1909), and, 
as the post exchange is intended to be a local institution belonging to 
a post, and not to move about with troops, held that the appropria- 
tion would not cover an expenditure for a tent that was intended to 
be a part of the movable equipment of the regiment. 0. 27950, 
Mar. 6, 1911. And, held, also, that although the Government 
appropriates for the construction of the post exchange building, 
still as the exchange itself is an instrumentality of the Government 
composed of military units, for which Congress makes no appropria- 
tion whatever, such items as a safe and a cash register which are not 
part of the equipment of a building, but are rather the equipment 
of a commercial enterprise conducted in the building, should be fur- 
nished by the post exchange itself, and are not a proper charge 
against the appropriation. C. 20299, Aug. 29, 1906. As a post 
exchange is an agency of the War Department, maintained for the 
benefit of enlisted men, and as the profits derived from its operation 
are exclusively applied to the company funds, the appropriation for 
the support of post exchanges should be expended for the exclusive 
benefit of enlisted men. C. 14970, May 4, 1910. Therefore, this 
appropriation should not be expended for the laying out of golf links 
unless for the exclusive use of enlisted men. C. 14970, Dec. 8, 1908. 
So, also, it could not be expended for furniture for an officer's mess. 
C. 15674, Dec. 18, 1903. 

Par. 1467, A. R. 1904 (1461 of 1910), provided that ''General hos- 
pitals will be imder the exclusive control of the Surgeon General and 
will be governed by such regulations as the Secretary of War may 
prescribe. The senior surgeon will command the same and will not 
be subject to the orders of local commanders other than those of 
territorial divisions and departments to whom specific delegation of 
authority may have been made." Held that in view of the above 
paragraph the general hospital at the Presidio of San Francisco 
constituted a separate post in all matters relating to administrative 
discipline and military control, and the construction of a post exchange 
at such hospital would be a proper charge against the appropriation 
for that purpose in the act of March 2, 1905 (33 Stat. 836). 0. 18827, 
Nov. 9, 1905. 

XXX. The act of May 25, 1900 (31 Stat. 183), made an appropria- 
tion for fortifications and other works of defense and "for the pro- 
tection, preservation, and repair of fortifications for which there may 
be no special appropriation available;" held that the above appro- 
priation was sufficient to cover the repair of a sailboat "that would be 

' But see "Appropriations," XVII, construing similar language in reference to 
laundries. 



APPROPRIATIONS XXXI. 55 

useful for transporting materials or making inspections connected 
with the fortifications 1 on Porto Rico. C. 9676, Jan. 23, 1901. 

Certain land at Corregidor Island, P. I., which it was desired to 
purchase, was not the land on which the fortifications in the course of 
construction were actually being erected, but was essential in connec- 
tion with the construction, use, and maintenance of the batteries 
and other works of defense and had no connection with the shelter 
of officers and enlisted men; held that the purchase could not be 
made from the appropriation "barracks and quarters, Philippine 
Islands," which provided "for the proper shelter and protection of 
officers and.enlisted men," but should be made from the appropriation 
for fortifications. C. 22798, Feb. 24, 1908. 

The act of March 2, 1905 (33 Stat. 845), made an appropriation 
"for the purchase and installation of searchlights for the defense of 
our most important harbors," the searchlights being of a movable 
character, mounted on trucks, and moved about by horsepower; held, 
that storehouses for the safe-keeping and shelter of such searchlights 
should not be considered a part of the "installation," but should be 
charged against the appropriations for the Quartermaster's Depart- 
ment, a 18474, SeiA. 5, 1905. 

XXXI. Wliere it was proposed to develop the coal fields on the 
island of Batan, P. I., by prospecting and testmg by drilling opera- 
tions, Tield that such an expense was chargeable agamst the appro- 
priation for "regular supplies," as that appropriation was charged 
with providing fuel for the Army. C. 21659, June 11, 1907. 

XXXII. The deficiency appropriation act of March 3, 1899 (30 Stat. 
1223), contained this provision: " For emergency fund to meet unfore- 
seen contingencies constantly arising, to be expended in the discre- 
tion of the President, three million dollars;" lietd, that this fund was 
available for expenditure toward the relief of the sufi'erers from the 
recent cyclone in Porto Rico.^ C. 6953, Aug. 30, 1899. Held, also, 
that where soldiers of the Philippine Scouts on duty at the St. Louis 
Exposition intrusted to their company commander, a white man, 
certain sums of money for safe-keeping, which sums were embezzled 
by the company commander, it was doubtful whether the scouts 
could be legally reimbursed out of the above appropriation.^ G. 
17191, Nov. 23, 1904. Held, also, that the above fund was not 
available to reimburse a quartermaster who had paid out money for 
transportation of sick and destitute civilians in Alaska. C. 11919, 
Jan. 24, 1902. 

XXXIII. A sum legally payable out of a specific appropriation can 
not be transferred to the credit of another appropriation. So held 
where a soldier of the Signal Corps made a deposit with a paymaster, 
sections 1305 and 1308, R. S., providing that such a deposit should 
pass to the credit of and be payable out' of the appropriation for "Pay 
of the Arm^ri" and it was sought to transfer this deposit to the credit 
of the appi'opriation for the "SignaV Service." P. 36, 265, Nov. 4, 
1889. But tiiis rule does not effect the proper disbursement of the 

1 See "Appropriations," XX, XXIII, and XXXVII. 

^ See VI Comp. Dec, 177, concurring in above opinion; see also "Appropriations," 
XVI. 

^ In this case the fund was not used to pay the scouts. Subsequently an unsuc- 
cessful attempt was made to obtain relief from Congress. 



56 APPEOPRIATIONS XXXIV. 

sum appropriated. Thus, where in a Military Academy appropria- 
tion act a certain amount was appropriated for the manufacture or 
purchase of models of guns and carriages, held that the Secretary of 
War was authorized to transfer tliis amount for disbursement to the 
disbursing officer at Watervliet Arsenal, where the models were to be 
manufactured, instead of leaving the disbursement to the disburs- 
ing officer at West Point. P. 60, 498, July 31, 1893. 

XXXIV. Wliere legitimate accounts were presented to the War 
Department which would properly be payable out of an appropriation 
which had been fully expended, held that the same should be trans- 
mitted to the Treasury Department as "claims to be certified to be 
due by the accounting officers under appropriations the balances of 
which have been exhausted or carried to the surplus fund, * * * 
and certified to Congress." They could then be appropriated for in a 
deficiency act, and thus paid. P. 62, 389, Nov. 24, 1893. 

XXXV] Section 4 of the act of June 16, 1890 (26 Stat. 158), provides 
that moneys paid upon purchase of discharges shall be ' ' deposited in 
the Treasury to the credit of one or more of the current appropria- 
tions for the support of the Army, to be indicated by the Secretary 
of War." Held, that under this section the Secretary could change 
his designation of appropriations from time to time, as to purchase 
money thereafter accruing, if, in his judgment, such change would 
be for the interests of the service. P. '69, 60, Apr. 11, 1893; C. 
11264, Sept. 27,1901. 

XXXVI A. Where it was desired to mstall certain woodworking 
machinery at the United States Military Prison at Fort Leavenworth, 
and it appeared that there was a special fund appropriated for grad- 
ually reconstructing the prison, and it also appeared that the cost of 
supporting the prisoners and maintaining the prison as a reformatory 
agency constituted a charge against the appropriations for the sup- 
port of the Army, Tield that if the proposed machinery was to be 
used in part in construction work and in part with a view to instruct 
the prisoners to work at a trade by which they could support them- 
selves after they were discharged, the cost thereof might be appor- 
tioned between the two appropriations as the Secretarv of War might 
deem just and equitable. C. 24994, May 19, 1909. 

XXXVI B. Machinery for laundering the clothes of prisoners at 
the United States Military Prison does not relate to the prison itself, 
but to the prisoners, and the cost of such machinery would be a proper 
charge against appropriations for the support of the Army, just as the 
cost of the food, clothing, and medical attendance of sucli prisoners is 
a charge against such appropriation. Either the appropriation for 
''Camp and garrison equipage," which is for "altering and fitting 
clothing and washing and cleaning when necessary," or for "inci- 
dental expenses," would be available for such expenditure. C. 19379, 
Mar. 28, 1906. 

XXXVI C. wliere a special form was printed for the use of the 
Inspector General in the conduct of an mspection of the quarter- 
master's and subsistence departments in the Philippine Islands, which 
was ordered by the Secretary of War, held that the cost of the same 
could be charged against the appropriation for printing in either the 
Quartermaster's or the Subsistence Department. C. 15022, July 28, 
1903. 



APPROPRIATIONS XXXVI D. 57 

XXXVI D. Where a requisition was made for certain specially ruled 
sheets necessary to carry into effect the appropriations ror the arma- 
ment of fortifications and for the arming and equipping of the Organ- 
ized Militia, held that the purchase of such sheets would constitute a 
charge against the appropriation for ' 'Stationery for the War Depart- 
ment," or against the appropriation for "Armament of fortifications," 
or against the appropriation for "Arming the militia," and that if 
any one of the above-mentioned appropriations had been unduly 
depleted, the cost could be charged against either of the others. 
C. 21225, Mar. I4, 1907. 

XXXVII. Where it was desired to install a plant for instruction 
purposes at Fort Monroe, where the Artillery School is located, held 
that if the plant was to constitute a part of the armament of the 
fortifications at Fort Monroe the purchase should be made from the 
fortification appropriation, but if needed solely or chiefly for pur- 
poses of instruction, and not as a necessary part of the defensive 
equipment of the fort, the purchase should be from the appropriation 
for the support of the school. C. 13823, Dec. 20, 1902. 

XXXVIII. Sections 19 and 20 of the river and harbor act of March 3, 
1899 (30 Stat. 1154), provide that "whenever the navigation of 
any * * * canals * * * shall be obstructed or endangered 
by any sunken vessel, boat, water craft, raft, or other similar obstruc- 
tion" the same may be removed by the Secretary of War. In view 
of the general purpose of the act, which was to keep the navigable 
waters clear of obstructions, the act should receive an extensive 
rather than a restrictive construction, and, therefore, the general 
words "other similar obstructions" should not be closely restricted 
to obstructions of the nature of those sj^ecifically mentioned, but if in 
any way similar they should be regarded as coming within the pur- 
view of the act. Therefore, where a draw span of a railroad bridge 
across the Portage Lake Canal had been thrown from its piers by a 
collision with a steamer and was lying in the canal, completely block- 
ing navigation, held that the span could be removed under the above 
act; and held, further, that the above act should be considered as 
making an appropriation for the specific purpose of removing wrecks, 
and therefore that act, rather than an indefijiite appropriation which 
was made for operatmg and carmg for canals and other works of navi- 
gation under wnich the Portage Lake Canals were operated, was the 
proper appropriation against which to charge the expense. C. 17866, 
Apr. 20, 1905. 

XXXIX. The appropriation that is chargeable with the purchase price 
of Government property imported into the Philippine Islands from the 
United States is also chargeable with the payment of customs duties 
and internal-revenue taxes legally assessed against the United States 
under the appropriation act of August 5, 1905 (36 Stat. 11 and 130).^ 
C.27U7,Mar.l4,1911. 

XL._ It was desired to supply the commissary storehouse, the rent 
of wliich was paid by the Quartermaster's Department, with gas for 
the purpose of testuig and sampling subsistence stores. Held, that the 
cost of fuel, and for heating the storehouse, if the storehouse was 
heated by artificial means such as steam or electricity, and for the 
lighting of the storehouse whether by candles, oil, gas, or electricity, 

» See XVII Comp. Dec, 701, to the same effect; see also XVI Comp. Dec, 146. 



58 APPROPRIATIONS XLI. 

constitute a charge against the appropriation for the Quartermaster's 
Department; but if gas is needed not for heating or hghting, but for 
testing and sampHng stores, the expenditure for the gas would not be 
one connected with tlie heating or hghting of the storehouse, but 
would be connected with the "purchase, care," etc., of subsistence 
supplies, and should, therefore, be a charge against the appropriation 
for the Subsistence Department. C. 21074, Feb. 9, 1907. 

XLI. As the expense connected with the installation and operation 
of electric fans for a military hospital is not an expense incident to 
lighting a military post, it should not be charged against the appro- 
priation for the Quartermaster's Department, but against the appro- 
priation for the "Medical and Hospital Department." C. 18847, 
Nov. 21.1905. 

XLII. In order to prepare a site for the erection of a hospital it was 
necessary to remove certain buildings under the control of the Ord- 
nance Department. Held, that the expense of the removal of the 
buhdings should be charged against the appropriation for the con- 
struction of the hospital and that the fact that the Ordnance Depart- 
ment had control of the buildings was not a material consideration 
in the case. C. 2398, June 27, 1896. 

XLIII. Wliere a hospital was required to pay for telephone mes- 
sages, held, that each message should be charged against that fund 
out of which the article to which the message referred was purchased. 
For instance, messages having to do exclusively with the sick and the 
detachment of the Hospital Corps, and which related to expenditures 
properly made out of hospital funds, as for food, milk, and articles for 
the use or benefit of the sick, etc., should be paid out of hospital 
funds; but messages connected with the administration of the hos- 
pital, such as those relating to the purchase of medicines, hospital 
property, etc., should be paid for by the Quartermaster's Depart- 
ment. C. 27273, Sept. 21, 1910. 

XLIV. The act of March 2, 1901 (31 Stat. 895), making appro- 
priations for the support of the Army provided for "the purchase of 
medical and hospital supplies, including disinfectants for military 
posts, * * * for the proper care and treatment of epidemic and 
contagious diseases in the Army, or at military posts or stations, 
including measures to prevent the spread thereof, and all other nec- 
essary miscellaneous expenses of the Medical Department." Held, 
that as the Army Medical School is an agency of tlie War Department 
for the instruction of newly appointed medical officers in matters 
pertaining to their specialty, just as officers of the line are drilled and 
instructed in technical schools in duties pertaining to their respective 
arms of service, the above appropriation could be expended in fitting 
up two rooms in the Army Medical School for necessary instruction. 
a 11258, Sept. 16, 1901. 

_ XLV. The act of May 11, 1908 (35 Stat. 122), making appropria- 
tions for the support of the Medical Department, provided "for 
medical care and treatment not otherwise provided for, including care 
and subsistence in private hospitals of * * * civilian employees 
of the Army * * * when entitled thereto by law, regulation, or 
contract." Where a civilan seaman on an Army transport was taken 
sick while the vessel was in port undergoing repairs and the ship's 
hospital was not in condition to be used, and the seaman was placed 
in a hospital ashore by order of the ship's surgeon, Tield, that the trans- 



APPEOPRIATIONS XLVI. 59 

port regulations charged the Government with the duty of furnishing 
the medical attendance to members of the ship's company and this 
duty continued to exist when the vessel was in port undergoing 
repairs, and that the hospital charges in the above case were charge- 
able against the above appropriation.^ C. 24389, Jan. 22 and Feb. 
15, 1909. So, also, where four seamen on an Army transport were 
affected with contagious diseases and were removed to a hospital 
ashore, lield, that the cost of transporting them to the hospital was 
chargeable against the above appropriation. C. 24389, July 27, 1909. 

XLVI. Wattmeters for measuring electricity are included in the 
language "electric fixtures" used in the appropriation act in connec- 
tion with certain construction work at a military post. C. 25456, 
Aug. 24, 1909. 

XLVII. The appropriation in the Army appropriation act of Feb- 
ruary 27, 1893 (27 Stat. 482), ''for the regular supplies of the Quar- 
termaster's Department, consisting of * * * fuel and lights for 
enhsted men, guards, hospitals, storehouses and offices, and for sale 
to officers" — Tield, so far as concerns lights and officers, to include 
any such lights or material for lighting as may be saleable to officers, 
and therefore to be applicable for the production and furnishing of 
gas, to be paid for by officers at a cost covering expenses. This 
appropriation for "fuel and lights" is first found in the Army appro- 
priation act of 1881, and, originating thus recently, may be deemed 
to contemplate gas as a material for lighting equally with the more 
primitive methods. P. 64, 4'^0, May 1, 1894-' 

XLVIII. Wliere it was desired to initiate certain tests with a view 
to determining whether there was an economical use of coal at mili- 
tary posts, held, that the expense of obtaining the services of experts 
in connection with such tests would be a proper charge against the 
appropriations out of which the cost of fuel and heating apparatus is 
defrayed. C. 23576, Sept. 13, 1909. 

XLIX. Congress appropriated for a monument to the prison ship 
martyrs, the appropriation to become available when certain sums 
had been appropriated by the State of New York and the city of New 
York and when a certain sum had been subscribed by the Prison Ship 
Martyrs Monument Association. After completing the monument 
a balance was left over. The act of appropriation was completely 
lacking in words indicating directly or indirectly what disposition 
should be made of this balance. Held, that the unexpended balance 
could not be turned over for the care and maintenance of the monu- 
ment.^ Held, further, that the unexpended balance should be 
divided pro rata among those by whom the funds were provided, 
whether by appropriation or subscription, and that the portion 
belonging to the United States be deposited to the credit of "Miscel- 
laneous receipts."^ C. 13999, Mar. 11, 1910. 

L. A provision in an appropriation for the Quartermaster's Depart- 
ment "for procuring water and introducing the same to buildings at 
such places as from their situation require it to be brought from a 
distance" is sufficient to cover the purchase of distilled w^ater at a 
division headquarters for the use of clerks where the ordinary water 
procured by the Quartermaster's Department is not fit for drinking 
purposes. C. 17317, Jan. 4, 1905. 

» I Comp. Dec, 62; II id., 347; V id., 913; VI id., 955; VII id., 407; VIII id., 296. 
2 See III Comp. Dec, 520. 



60 APPROPRIATIONS LI. 

LI. No part of an appropriation which has been made for the erec- 
tion of a pubhc building can legally be used in the purchase of furni- 
ture therefor, except such in the nature of fixtures as may be consid- 
ered a part of the building itself and necessary to complete it for the 
purposes stated in the appropriation act.^ C. 3944} Mar. 18, 1899. 

III. In the Army appropriation act of February 27, 1893 (27 
Stat. 483), under the head "Army transportation," money was 
expressly appropriated "for constructing roads and wharves." Held, 
that the expense of repairing a crib dock and approach thereto 
belonging to the Government on the Fort Wayne Military Reserva- 
tion, and used for military purposes, would be a proper charge against 
the said appropriation. C. 70, July 19, 1894- 

nil. Where the Government required for military purposes a 
street in which were situated water mains and hydrants, held, that the 
money appropiiated for the purchase of the land could be expended 
for purchase of the mains and hydrants. C. 15110, Jan. SO, 1909. 

LIV. The act of March 2, 1907 (34 Stat. 1158), made an appropria- 
tion "for the library of the Surgeon General's office, including the 
purchase of necessary books of reference and periodicals. Held, that 
the above appropriation is broad enough to cover the hire of the 
laborers necessary in handling and carrying books in connection with 
the reclassification of the library. C. 22214, Oct. 15, 1907. 

LV. The sundry civil act of July 1, 1898 (30 Stat. 628), appropriated 
a specified amount for lighting 20 arc lights in the Executive Mansion 
Grounds and Monument Park 365 nights at not exceeding 25 cents per 
light per night, "which shall cover the entire cost to the United 
States of lighting and maintaining in good order each electric light in 
said grounds and park." Held, that the cost of necessary excavations 
and extension of underground conduits to carry the current for the 
new lights would be a proper charge against this appropriation. C. 
4641, July 30, 1898. 

LVI. The act of March 23, 1910 (36 Stat,.245), in making an appro- 
priation for the expenses of the Signal Service of the Army, appro- 
priated for the "maintenance and repair of military telegraph lines 
and cables, including salaries of civilian employees, supplies, and 
general repairs." Held, that the appropriation for the abovepurpose 
was sufficient to include the travel expenses of a civilian employee 
of the Signal Corps who was on temporary duty in Alaska as wireless 
inspector in connection with the installation of new equipment and 
overhauling apparatus already installed at wireless stations in Alaska. 
C. 19479, Dec. 22, 1910. 

LVII. The act of March 9, 1906 (34 Stat. 56), for the marking, etc., 
of the graves of the Confederate dead who died in northern prisons, 
'etc., covers "proper fencing for the preservation of said burial 
grounds." Held, that as the Secretary of War is not restricted as to 
the means for carrying out the provision for fencing, he may authorize 
such means as may in his judgment be necessary to carry out the 
object of the appropriation, and be may therefore employ an architect 
to design the fencing and attend to its construction and may pay him 
the usual compensation for such services. C. 19834, J'^ly ^3, 1907. 

^ See III Comp. Dec, 134, holding that an appropriation "to alter certain rooms" 
in the courthouse of the District of Columbia did not cover the purchase of furniture 
or other articles that did not become fixtures. 



APPROPRIATIONS LVIII. 61 

Held, also, that under the same statute he may expend the appro- 
priation for such grading as is necessary to the proper construction 
of a fence. C. 26539,^ Oct 18, 1909. 

IVIII. Wliere certain trees on private land were cut down for use 
in the construction of a pontoon bridge in th'e course of tactical 
instruction under direction of the authorities of a service schoo], held, 
that the trees should be considered as articles purchased for the use 
of the military establishment and the owner be paid the value of the 
same out of the funds set apart for the use of the particular service 
school in connection with which the pontoon construction was being 
carried on. C. 24968, May 17, 1909. 

IIX. The act of February 14, 1902 (32 Stat. 12), provided "for 
the establishment in the vicinity of Manila, Philippine Islands, of a 
military post, including the construction of barracks, quarters for 
officers, hospital, storehouses, and other buildings, as well as water 
supply, lighting, sewerage, and drainage, necessary for the accom- 
modation of a garrison of two full regiments of Infantry, two squad- 
rons of Cavalry, and two batteries of Artillery, to be available until 
expended, five hundred thousand dollars." Held, that as the above 
statute did not specifically authorize the construction of "roads," it 
could not be used for such a purpose. C. 12154, Apr. 23, 1904. 

IX. There is no authority to expend public money in furnishing 
music to so-called "volunteer bands," as such bands are not author- 
ized by law as a part of the military establishment. C. 23870, Dec. 
11, 1908. 

IXI. While the Government of Porto Rico was being carried on 
under military authority a native of the island killed a United States 
soldier, the crime being of a character neither political nor in violation 
of the laws of war, and was tried by military commission and sentenced 
to a term of imprisonment. The confinement was served in a state 
penitentiary. Held, that the crime was one over which the courts of 
Porto Rico had jurisdiction,and the fact that justice was administered 
by a military commission did not make the crime any less a violation 
of the laws of Porto Rico, and that therefore the bills connected 
with the keeping of this prisoner in a State penitentiary were not 
payable from any appropriation for the Army.^ C. 15759, Jan. 15, 
1904. 

IXII. The act of June 25, 1910 (36 Stat. 723), made an appro- 
priation "for repair and preservation of monuments, tablets * * * 
made and constructed by the United States upon public land within 
the limits, of Antietam battle field." A tablet on the battle field 
bore an inscription which was inaccurate and incomplete, and the 
only practicable method of making a correction in the inscription was 
to cause a new tablet bearing an amended inscription to be cast, the 
old tablet to be broken up. Authority for such action was requested. 
Held, that under the above appropriation the new tablet might be 
made as requested. C. 28328, May 12, 1911. 

IXIII. By act of July 8, 1898 (30 Stat. 730), $200,000 was appro- 
priated " to enable the Secretary of War, in his discretion, to cause to 
be transported to their homes the remains of officers and soldiers who 
die at military camps or who are killed in action or who die in the 

* In this case the Attorney General held that after military authority in the island 
had ceased the power to remit the unexecuted sentence was in the governor of Porto 
Rico. 



62 APPEOPBIATIONS LXIV. 

field at places outside of the limits of the United States." Held, 
that the appropriation could be used for providing metallic caskets 
and other expenses incident to disinterring the remains and prepar- 
ing them for shipment as well as for transportation proper, as such 
expenses are necess'ary and proper to their transportation. But 
further held, that the act did not apply where the deceased officer or 
soldier died within the limits of the United States. C. J^808, Aug. 
18, 1898. 

LXIV. An estimate for providing a water supply for the Presidio 
of San Francisco was made in the following language: "For the 
purchase of land and acquirement of water rights on Lobos Creek, 
California, to protect the water supply of the Presidio of San Fran- 
cisco, and to provide an independent water supply for military pur- 
poses in San Francisco Harbor, California." At a hearing before 
the committee of Congress the Quartermaster General stated that 
the estimate was to cover the purchase of all of one side of the creek, 
the Government already owning the other side. A sum of money 
was appropriated for the purpose stated in the estimate, the language 
of the appropriation being identical with that of the estimate. Hem, 
that as neither the estimate nor the appropriation specified the amount 
of land and water rights which were to be acquired, the remarks of 
the Quartermaster General to the congressional committee should 
not be regarded as limiting the legal discretion in the Secretary of 
War to purchase such land and water rights as were necessary, and 
that if a purchase of a part only of one side of the creek was sufficient 
the entire appropriation could be used for this purpose. C. 581^., 
June 28, 1911. 

LXV. Held, that the act of Congress approved March 3, 1909 (35 
Stat. 747), authorizing a disbursing officer of the Quartermaster's 
Department, having to his credit insufficient balance under the proper 
appropriation to make payment from the total available balance to 
his official credit, provided sufficient funds under the proper appro- 
priations have been apportioned by the Quartermaster General for 
the expenditure, was not limited to appropriations pertaining to the 
same fiscal year; that there was nothing in the language of the 
appropriation which would justify such a limitation. C. 17327, 
Aug. 5, 1910. 

LXVI. A civilian employee was sentenced by a court-martial to a 
forfeiture of pay. Held that the forfeiture should not be actually 
paid, but should remain in the appropriation from which the civilian 
was paid, the forfeiture being in effect a reduction of his authorized 
pay to that extent. C. 9326, Nov. 23, 1900. 

LXVII. Where the United States owned to the middle of a street 
adjoining a national cemetery, held that an appropriation "for main- 
taining and improving national cemeteries" would cover the cost of 
construction of a sidewalk along the street if the sidewalk is consid- 
ered as required for the convenience of access to the cemetery. C. 
26106, Jan. 22, 1910. 

CROSS REFERENCES. 

Act, rule of construction See Laws I B 1 b . 

Execution of, for River and Harbor xvorh. ..See Navigable waters X A to B. 

Expenditures in excess of See Contracts XIII to XIV. 

Under 1661 R. S., available until expended. .See Militia X A 1. 



AKCHITECT ARMY: SYNOPSIS. 63 

ARCHITECT. 

Payment of. ._,.„..._.,. See Appropriations LVII. 

ARMORY. 

See Militia VIII. 

ARMS. 

I. ARMS DEFINED. 
II. STATE QUESTION. 

I. The Constitution of the United States provides that a well-reg- 
ulated militia ''being necessary to the security of a free state, the 
right of the people to bear arms shall not be infringed. " ^ Held that 
the word "arms " refers to the arms of the militia or soldier and does 
not authorize the carrying of weapons not adapted to use for military 
purposes. C. 1169, May 27 , 1910. 

II. Held that the question of -carrying weapons is one that is 
regulated by the States, and is a matter over which the Government 
of the United States has neither jurisdiction nor control. C. 1169, 
Feb. 27, 1908. 

CROSS REFERENCES. 

Borrowing from allies See War I C 6 d (1). 

Furnished by allies See Claims VII B 6. 

Furnishing to colleges See Military instruction II B 1 c; 2. 

Sale of and seizure of See Public property IX B 1 . 

State can not forbid soldier to carry See Government agencies V. 

ARMY. 
I. PERSONNEL. 

A. Commander in Chief. 

1. Appointing power. (See Office.) 

2. Convening and reviewing authority. (See Discipline.) 

3. Pardoning power. (See Pardon.) 

4. Can not issue regulations in conflict with statutes. (See Laws.) 

5. May drop officers as deserters. (See Deserter.) 

6. Turning prisoner over to civil authorities Page 69 

7. Can not exchange old property for new. 

8. Can suspend a cadet without pay. (See Army I D 2.) 

B. Secretary of War. 

1. Acts of. 

a. Are acts of President. 

(1) As to orders. 

(2) As to transfers of property Page 70 

b. Can not be reopened by successor. 

2. Authority of. 

a. Over personnel of the Army. 

(1) Assignment of line officers to staff duty Page 71 

(2) Will not collect debts against officers. 

(a) But can apply a disciplinary remedy Page 72 

(3) May detail a squadron sergeant major on extra duty. 

(4) Can not restore a general prisoner to duty. 

' Art. II, Amendments, 



64 " aemy: synopsis. 

I. PERSONNEL— Continued. 

B. Secretary of War — Continued. 

2. Authority of — Continued. 

b. Over property. 

(1) As to bonds of disbursing officers. 

(a) Can not relieve commissary of bond while on general 
staff. 

(2) As to funds. 

(a) Can order inspection of Signal Corps funds. 
(6) Can not divert forfeitures from treasury to any par- 
ticular fund Page 73 

(3) As to lands. 

(a) Can not accept conditional conveyances. 

(4) Can fix selling price of repaired property. 

(5) Can not loan Government property. 

c. Over records. 

(1) May refuse to furnish to Court of Claims. 

(2) Rule as to furnishing to other departments. 

d. To grant franchises. 

(1) Legislation required in case of navigable waters Page 74 

e. Delegation of authority. 

(1) To Chief of Engineers in river and harbor work. 

f. Can not restrict a general's right to aids-de-camp. 

g. Can order officers' travel without reporting to Congress. 
h. Authority to havfe documents printed. 

(1) Under act of July 7, 1884. 

(2) Under act of January 12, 1895 Page 75 

3. Acting Secretary in absence of Secretary. 

4. Hearings before. 

a. Qualifications of lawyers who appear. 

5. Requests on other departments. 

a. Department of Justice to defend officer or enlisted man in civil 

courts Page 76 

b. To prosecute soldier who presented fraudulent final state- 

ments Page 77 

6. Request on Congress for relief of ofiicers. 

a. WTien subjected to judgment due to execution of duty. 

b. Reimbursement of stoppage, loss of public money not involving 

neglect. 

7. Can order issues. 

a. Of clothing to general prisoners. 

8. May order hospital attendant to attend a discharged soldier to sol- 

dier's home '. Page 78 

. 9. Can not authorize dredging for gold in navigable waters. 

10. Responsible for construction of fortifications and seacoast defenses. 

11. Rule of comity as to relations with civil authorities. 

C. Officers. (See Line, Staff, under Army; also Office, Rank, Command, 

Pay, Retirement, Discipline, etc.) 
v. May not hire soldier as servant. 

2. Can not be deprived of pay by civil process. 

3. Can not accept remuneration from a foreign power Page 79 

4. Can not accept present from soldiers. 



akmy: synopsis. 65 

PERSONNEL— Continued. 

D. Cadets. 

1. Appointment. 

a. Applicant must be actual resident of district. 

(1) Rule if State has been redistricted. 

(2) Residence may be changed after appointment. 

(a) Minor. 

[1] If emancipated may acquire residence. Page SO 
[2] Not emancipated. 

[a] Residence same as father's. 

[A] Father on duty in district, but 

not resident therein. 

[B] Alien attending school in United 

States. 
(6) Alternate. 

[1] Can not succeeed to principalship except by 
appointment. 
(c) Appointment from Alaska Page 81 

b. Age. 

(1) Limitation applies at beginning of academic year. 

c. Unmarried. 

(1) May be a divorced man. 

d. Reappointment. 

(1) In case of resignation. 

(2) In case of discharge because of deficiency. 

(3) In case of dismissal by sentence of court-martial. 

2. Cadets found deficient. 

a. May be given furlough without pay Page 82 

b. Reappointment of. 

3. Punishment. 

a. Trial by court-martial. 

b. Summary. 

(1) Punishment by order is unauthorized. 

(2) For hazing. 

(a) Dismissal authorized. 

4. Change of name by cadet , Page 83 

5. Not entitled to mileage. 

6. Graduation leave. 

E. Enlisted Men. 

1. Noncommissioned officers. 

a. Warrants are private property. 

b. Reduction of. 

2. Post noncommissioned staff officers. 

a. Service as commissioned officer does not count toward appoint- 

ment as commissary sergeant Page 84 

b. Selection of post quartermaster sergeants not restricted to ser- 

geants. 

c. May be placed on extra duty if authority is obtained in advance. 

3. Military status of enlisted men. 

a. Not ineligible to hold civil office. 
(1) May act as postmaster. 
93673°— 17 5 



66 aemy: synopsis. 

I. PERSONNEL— Continued. 

E. Enlisted Men — Continued. 

3. Military status of enlisted men — Continued. 

b. Positions the holding of which is incompatible with military 

status Page 85 

(1) Office in civil service in Philippine Islands. 

c. Details not inconsistent with military status. 

(1) To alter grade emplacements for Coast Artillery guns. 

4. Chief musician, status of. 

5. May be in contempt of civil courts. 

F. General Prisoners. (See Discipline.) 

G. Regular Army. 

1. Standing Army in peace and war. 

2. Line. 

a. Mobile Army. 

(1) Porto Rican Regiment Page 86 

(a) Natives may be officers. 
(6) Natives may be chaplains. 

(2) Philippine Scouts. 

(a) Belong to the Regular Army. 

b. Coast Artillery Corps. 

(1) Office of Chief not bureau of War Department. 

(2) Unassigned list of officers. 

(3) Targets towed over ' ' lobster pots ' ' Page 87 

3. Staff. 

a. Administrative staff. 

(1) General Staff. 

(a) Can not command without presidential assignment. 

(2) The Adjutant General's Department. 

(3) Inspector General's Department Page 88 

(a) Reports of, are confidential documents. 

(4) Judge Advocate General's Department. 

(a) Judge Advocate General. 

[1] Duties of. 

[2] Reports of, are confidential Page 89 

[3] No administrative jurisdiction over claims of 
court reporters. 

[4] Does not express opinions on questions which 
affect only one or more of the States. {Also 
see "Militia") Page 90 

b. Supply staff. 

(1) Detailed officers must furnish bonds. 

(2) Quartermaster's Department. 

(a) Transportation. 

[1] Street car tickets. 

[2] Through foreign territory. 

[a] Troops. 

[b] Supplies. 
[3] By sea. 

[a] Of man discharged without honor. 
[h] Pensionable status of ship's officers. 

Transport quartermaster summoned 

before United States commissioner 

Page 91 



/ 



aemy: synopsis^ 67 

I. PERSONNEL— Continued. 

G. Regular Army — Continued. 
3. Staff — Continued. 

b. Supply staff— Continued. 

(2) Quartermaster's Department— Continued. 

(a) Transportation — Continued. 

[3] By sea— Continued. 

[d] Disposition of property found. 

[e] Of military supplies in American vessels. 

[f] Of members of family and servants. 

[g] Principle of exterritoriality. 
[h] Mess bill. 

[ij In American or foreign bottoms. Page 92 
[4] Transportation over automobile line. 

(b) Purchase of horse from officer requires approval of Sec- 

retary of War. 

(c) Can sell forage to retired officers Page 93 

(3) Subsistence Department. 

(a) Post commissary. 

[1] Can hold each member of an officers' mess liable 

for his share of supplies furnished. 
[2] Can not issue more than is authorized. 
[3] Issue to civilian employees in Alaska. 
[4] Issue of rations in kind in Alaska. 

(4) Ordnance Department. 

(a) Authority of chief under sec. 1167 R. S. 
(6) Chief of Ordnance can not make rules for inspection of 
ordnance property. 

(c) Examination of officers for detail in Ordnance Depart- 

ment. 

(d) Ordnance sergeant Pf,^g ^ / 

c. Engineer Department. 

(1) Duties. (See also Public property, rivers and harbors, navi- 
gable streams, etc.) 

d. Medical Department. 

(1) Practice of surgeons. 

(2) Board of review on examination for promotion. 

(a) Jurisdiction. 

(b) Action by War Department Page 95 

(3) Medical Reserve Corps. 

(a) "Emergency" in act of April 23, 1908, defined. 
(6) Officers of Medical Reserve Corps are- commissioned 
('^) Status p^g^QQ 

[1] As to privileges. 

[2] Before assignment to duty. 

[3] How discontinued. 

[4] WTien mounted, entitled to transportation for 
private mounts. 

(4) Contract surgeon. 

(a) Use of, not forbidden p^^g gj 

(b) Oath of office not administered to. 

(c) Status and duties. 

(d) Contract dental surgeon Pagg gg 



68 aemy: synopsie. 

I. PERSONNEL— Continued. 

G. Regular Army — Continued. 
3. Staff — Continued. 

d. Medical Department — Continued. 

(5) Hospital Corps. 

(a) May be increased by Secretary of War. 

(6) Sergeants, first class, detailed as mess sergeants. 

(6) Niu-ses. 

(a) Nurse Corps (female). 

[1] An integral part of the Army. 
[2] Leave of absence not cumulative. 

(7) General hospitals. 

(a) Hot Springs, Ark. 

[1] Civil employees eligible for treatment as pa- 
tients. 

[2] Discharged enlisted men of Navy not eligible 
for treatment as patients. 

(8) Post hospitals. 

(a) Officers' servants are entitled to treatment as patients. 

(b) Procedure in case of escheat of estate of deceased 

patient to United States. 

[1] Case of soldier. 

[2] Case of discharged soldier. (See Public prop- 
erty.) 

(c) Special diet. 

[1] Ginger ale, etc Page 99 

(d) Funds obtained from sale of supplies. 
H. VoLtTNTEER Army. (See Volunteer Army.) 

1. Office in. (See Office.) 
L Militia Called Forth. (See Militia.) 
n. EMPLOYMENT OF ARMY TO AID CIVIL AUTHORITY. 

A. To Protect State from Invasion or Domestic Violence. 

1. When legislature can not be convened. 

2. Rule of comity between Army and State officers. 

B. May be Used in Alaska. 

C. May be Used in Indian' Country Page 100 

1. Use of officers to instruct Indians. 

D. Duties op Commanding Officer during Disorder refore Rec'eipt of 

Orders Page 101 

E. Force so Employed can not be Placed undeti Control of Governor, 

F. Can not be Used for Posse Comitatus. 

1. May be used to serve process. 

G. In Philippines. 

1. Scout companies. 

a. Undercommand of chief or assistant chief of Constabulary. Pagel02 

2. Regular troops and scouts. 

a. Under ordinary circumstances are not responsible for good order 

of the community Page 103 

(1) May become so when called out. 

H. Can not be Used to Police Forest Reserves Page 104 

I. Riots, etc. 

1. Proclamation will precede use of Federal troops. 

2. Troops will not be placed under State control. 

3. The President is judge. 

» a. Of size of force to use. 

b. Of extent of territory to occupy. 



AEMY I A 6. 69 

n. EMPLOYMENT OF ARMY TO AID CIVIL AUTHORITY— Continued. 
I. Riots, etc. — Continued. 

4. Republican form of State government can not be overthrown. 

5. Trespassers can be ejected from Indian country Page 105 

6. Used to guard post road. 

K. Use of Army to Enforce Neutrality. 

1. By preventing hostile expeditions, etc., leaving country. 

a. Military expedition defined . 

b. How much force may be used. 

c. Department commander should turn information of hostile expe- 

ditions over to c\v\\ authorities Page 1 06 

d. Armed forces can not pursue a hostile expedition into foreign 

territory. 

e. Seizing contraband supplies. 

(1) Should be turned over to Federal civil authorities. 

(2) Not to be turned over to State authorities. 

f. By preventing violation of our peace due to firing from across the 

border line into our territory by participants in a foreign 
civil war. 

(1) Our commanding general should promptly inform both for- 

eign commanding generals and request them to desist. 

(2) May defend against such fii-e Page 107 

,g. Commanding general. 

(1) Should maintain friendly relations with the State in which 

he is serving. 

(2) Can not support State autliorities in execution of State laws. 
h. Interned prisoners. 

(1) Finger prints of, may not be taken. 
m. EMPLOYMENT OF ARMY TO MAKE WAR. (See War.) 
IV. MATERIAL. (See Public Property, Supplies, Pay, etc.) 
V. USE OF ARMY TO ENFORCE TREATY RIGHTS IN CHINA. 

I A 6. Whether the Executive shall turn over a miliatry prisoner 
undergoing sentence of court martial to a governor of a State, upon 
his formal request, in order that he may be tried and punished by a 
court of the State, or in order to enable such governor to surrender 
him to the governor of another State in compliance with a requisition 
made by the latter for the party as a criminal under the laws of the 
latter State — is a question to be decided by considerations of policy 
and expediency suggested by the facts of the particular case. The 
U. S. Government is under no obligation to surrender its prisoner, 
and whether it will, in comity, do so, should in general depend mainly 
upon the nature of the crime charged. Unless the party be charged 
with a peculiarly heinous offense, of which, for the purposes of public 
example and punishment, a prompt investigation by a civil tribunal is 
called for, the Executive will in general properly decline to turn over 
the party to the civil authorities till his military punishment has been 
fully executed. R. 37, 47, Oct., 1876; 0. 5955 and 6055, Ma/r., 1899. 

I A 7. Held that the commander in chief has no authority to 
exchange old prq^erty for new property. C. 2127, Mar. 14, 1896. 

I B 1 a (1). It is a fundamental general principle of our public law 
that all acts done by and directions emanating from the heads of the 
executive departments in the course of their administrative duties, 
are in law the acts and directions of the President, in whom is reposed 
by the Constitution the entire executive power of the Government, 



70 ARMY I B 1 a (2). 

and whom the heads of departments (except where specially invested 
by Congress with distinctive authority of their own ^) simply act for 
and represent.^ Thus all orders made and issued by the Secretary of 
War in connection with the government and regulation of the military 
establishment — such as orders convening general courts martial, or 
approving and directing the execution of the sentences or otherwise 
acting upon the proceedings of such courts, or mitigating or wholly or 
partially remitting punishments imposed thereby ; or orders summarily 
dismissing officers, or dropping for desertion, retiring or accepting the 
resignation of, officers ; or orders establishing military reservations, or 
promulgating army regulations, &c. — are to be regarded as the 
orders and acts of the President, whom the Secretary of War repre- 
sents in the administration of his department; the same being pre- 
sumed to be made and issued with the knowledge and by the direction 
of the President, whether or not he be referred to therein as having 
directed or commanded the same; and being equally as valid and 
operative as if signed by the hand of the President liimself .^ R. 5, 319, 
Nov., 1863; 9, U, May, .1864; 23, 654, Aug., 1867; 37, 650, June, 1876; 
38, 107, 243, June and Aug., 1876; 39, 296, Nov., 1877; 4I, 25, 611, 
Se'pL, 1877, and July, 1879; 42, 209, Mar., 1879; 43, 106, Dec, 1879; 
P. 41, 360, June 30, 1890. 

I B 1 a (2), Where, by an act of Congress, the President was 
"authorized to dispose of" certain reserved lands of the United 
States, but was not in terms required to execute the transfer, held 
that the execution of the deeds was a ministerial act and that the 
same might legally be executed by the Secretary of War. P. 48, 
420, Aug., 1891. 

I B 1 b. It is an established rule of our administrative law that a 
decision upon a claim once arrived at, upon whatever grounds, by the 
head of a department of the Government, is a finality so far that, in 
the absence of new evidence, error of calculation, or fraud, it can not 
(without the authority of Congress) be reopened by a successor.* 
R. 51, 136, Nov., 1886; P. 53, 443, May, 1892; C. 687, Dec, 1894. 
Held that "new evidence," to be available to change a determination 
upon a claim arrived at by a previous Secretary of War, must be 

1 That a Secretary may have special powers devolved upon him, independently of 
the President, by an act of Congress, see United States v. Kendall, 5 Cranch, Ct. Cls., 
163 (Fed. Cas., 15517). 

2 Lockington v. Smith, Peters Gt. Cls., 472; United States i). Benner, 1 Baldwin, 238; 
Wilcox V. Jackson, 13 Peters, 498, 513; United States v. Eliason, 16 id., 302; The Con- 
fiscation cases, 20 Wallace, 109; U. S. v. Farden, 99 U. S., 10, 19; Wolsey v. Chapman, 
101 id., 655, 769; Rimkle v. U. S., 122 id., 543, 557; United States v. Webster, Daveis, 
38, 59 (Fed. Cas., 16658); United States v. Freeman, 1 Wood. & Minot, 45; Lock- 
ington's case, Brightly, 288; United States v. Cutter, 2 Curtis, 617; Hickey v. Huse, 
56 Maine, 495; McCall's case, 5 Philad., 289; In matter of Spangler, 11 Mich., 322; 
1 Op. Atty. Gen., 380; 6 id., 326, 587, 682; 7 id., 453, 725; 9 id., 463, 465; lOid., 527; 11 id., 
398; 13 id., 5; 14 id., 453. 

3 See Wilcox v. Jackson, 13 Peters, 498; U. S. v. Eliason, 16 id., 302; U. S. v. Farden, 
99 U. S., 10, 19; Wolsey v. Chapman, 101 id., 755, 769; Hickey v. Hiise, 56 Maine, 
495; 2 Op. Atty. (}en., 67; 13 id., 5; 14 id., 453; 15 id., 290, 463; G. 0. 35, W. D., 1850. 

4 U. S. V. Bk. of Metropolis, 15 Peters, 378; Rollins and Presbrey v. U. S., 23 Ct. 
Cls., 106, and cases cited; WaddelVs Case, 25 id., 323; 9 Op. Atty.lGen., 32; 12 id., 355; 
14 id. ,275; 15 id. ,192; 16 id. ,452; I Comp. Dec, 193; 2 id., 264, 401; 4 id., 303; 6 id., 
236, 245. In Rollins and Presbrey v. U. S., supra, it was held, quoting from syllabus, 
that "any public officer in an executive department may correct his own errois and 
open, reconsider, or reverse any case decided by himself." In delivering the opinion 
of the court, Chief Justice Richardson said: "It has long been held in the executive 
departments that when a claim or controversy between the United States and indi- 



AEMY I B 2 a (l). 71 

evidence as to its merits, A mere reargument, upon a subsequent 
application, with citation of authorities or precedents, is not such 
"new evidence," or evidence at all, and can not avail to reverse the 
original decision. P. 68, 110, Feb., 1893. Where an order, fixing 
the status of an officer on the retired fist, was issued by the Secretary 
of War in the execution of a statute which it was his duty to execute, 
lield that such order was res judicata, and could not be reopened or set 
aside by a succeeding Secretary, in the absence of fraud or manifest 
error on the face of the proceecfings. P. 41, 358, June, 1890; ^2, 
438, Sept. 1890; C. 4954, Sept. 13, 1898; 11741, Jan. 11, 1902; 13244, 
Sept. 2, 1902; I4O43, Feh. 24, 1903; 16202, Apr. 20, 1904; I64I6, 
May 27, 1904, Jan. 9, 1905, and Dec. 6, 1906; 16913, Sept. 20, 1904; 
20446, Sept. 27, 1906; 29327, Jan. 13, 1912. 

I B 2 a (1). Under the requirements of section 26 of the act of 
February 2, 1901 (31 Stat. 755), that "officers so detailed shah serve 
for periods of four years, at the expiration of which they shall return 
to duty with the line," held, that the foregoing requirement is manda- 
tory, and makes it necessary that such details shall terminate at the 
expiration of the statutory period; held, also, however, that it is 
within the authority of the Secretary of War to assign an officer so 
relieved to smy duty that he may regard as conducive to the public 
interest; that if he assigns him to duty in connection with the con- 
struction of buildings, his bond, if he has given one as detailed captain 
in the Quartermaster's Department, would not be appficable to the 
duty performed under his new assignment; and that it is in the 
discretion of the Secretary of War to require a new bond to cover the 
duties with which he is charged in such new assignment. C. 15844, 
Apr. 16, 1910. 

I A 2 a (2). It is not within the province of the War Department 
to afford to officers of the Army protection against suits instituted by 
civifians claiming to be their creditors. P. 64, 63, Feh., 1894. Nor 
can the Government properly act as collector of private indebtedness 
due from officers or enfisted men of the Army. In such cases resort 
should be had to the civil courts. Where, however, the question 
becomes one of conduct unbecoming an officer and a gentleman on 

viduals therein pending has once been fully considered, and final action and determi- 
nation had thereon by any executive officer having jurisdiction of the same, it can not 
be reopened, set aside, and a different result ordered by any successor of such officer, 
except for fraud, manifest error on the face of the proceedings, such as a mathematical 
miscalculation or newly discovered evidence, presented within a reasonable time and 
under such circurnstances as would be sufficient cause for granting a new trial in a 
court of law. This ruling and practice of the departments has been approved else- 
where and has been sustained by the courts. (9 Op. Atty. Gen., 34; 12 id., 172, 358; 
14 id., 387, 456; 14 id., 275; 15 Pet., 401; Lavalette's Case, 1 Ct. Cls., 147; Jackson's 
Case, 19 id., 504; State of Illinois Case, 20 id., 342; McKee's Case, 12 id., 560; Day's 
Case, 21 id., 264, and the opinion of the Judiciary Committee of the Senate, reported 
by Senator and Judge David Davis, quoted in Jackson's case above referred to.) 
But it has never been doubted that any public officer in the departments may correct 
his own errors, and open, reconsider, and reverse in whole or in part any case decided 
by himself." As to reopening final settlements, which have been followed by receipt 
and acceptance by the claimant of the amount awarded, 5 Op. Atty. Gen., 122; 10 
id., 259; 12 id., 386; IV Comp. Dec, 328; VI id., 858. 

The act of July 31, 1894 (28 Stat. 208), provides that "any person accepting pay- 
ment under a settlement by an auditor shall be thereby precluded from obtaining a 
revision of such settlement as to any items upon which payment is accepted." In 
view of this statute the accounting officers have no jurisdiction to reopen a settlement, 
upon newly discovered evidence, as to any item upon which payment of the amount 
allowed by an auditor has been accepted. VII Comn. Dec, 537. 



72 ARMY I B 2 a (2) (a). 

the part of an officer or of conduct to the prejudice of good order and 
military discipHne on the part of either an officer or enlisted man, 
action may be taken by the War Department on these questions only.^ 
0. 5482, Dec, 1898; 5931, Mar., 1899. 

I B 2 a (2) (a). The Secretary of War is without authority to 
appropriate or stop an officer's pay for the use of his family, or to 
satisfy a judgment or decree of a civil court growing out of an obliga- 
tion of a private character. But he may of course cause such officer 
to be brought to trial by court martial for dishonorable conduct in 
the treatment of his family or with respect to the obligation referred 
to. C. 3500, Sept., 1897; 3819, Jan., 1898; 5482, Dec, 1898; 6882, 
Aug., 1899. Nor in the case of a retired officer, alleged to be irre- 
sponsible, has the Secretary of War authority to designate a person 
to receive and distribute such officer's pay. In such case, the appoint- 
ment of a guardian by the proper court should be secured by the 
parties interested. C. 4636, July, 1898; 13097, Aug. 12, 1902; 
13439, Oct 14, 1902; 15770, Jan. 16, 1904; ^7915, May 4, 1905; 
21852, Oct. 15, 1907. 

I B 2 a (3). Held that the Secretary of War may detail a squadron 
sergeant major on extra duty and that such detail can not be made 
without his authority. C. I4664, May 18, 1903. 

I B 2 a (4). Section 6 of the act of March 3, 1873, provided, with 
regard to general prisoners confined in the United States military 
prison, that "the Secretary of War is authorized and dii^ected to remit, 
m part, the sentence of such convicts and to give them an honorable 
restoration to duty in case the same is merited." Held that it has not 
been possible for the Secretary to exercise this power since the enact- 
ment of the act of August 1, 1894, as that act prohibits the reenlist- • 
ment of men whose preceding term of enlistment has not been honest 
and faithful. C. 22577, Nov. 17, 1911. 

I B 2 b (1) {a). A permanent officer of the Subsistence Department 
detailed in the General Staff can not be relieved from his bond by the 
Secretary of War. But no obligation accrues under the bond whUe 
so serving as an officer of the General Staff; it is, therefore, suggested 
that the bonding company be advised, with a view to remit the annual 
premiums during his incumbency of office in the General Staff. 
C. 4396, Feb. 19, 1900. 

I B 2 b (2) (a). Held that the Secretary of War has authority to 
cause funds m possession of officers of the Signal Corps who are charged 
with their disbursement in connection wdth the Alaskan telegraph 
and cable lines, includmg funds in course of telegraphic transmission, 

1 The Secretary of War does not undertake the collection of debts due private per- 
sons from officers and soldiers, nor to require a preference for any particular creditor 
in payment in such cases. His aim is to protect the character and standing of the 
Army, and to eliminate from it those guilty of dishonorable conduct. WTiere charges 
of such conduct are made they will be promptly investigated, and where statements 
of nonpayment of debts are made against officers, they will be investigated with this 
end in view. Ruling, Secretary of War, Nov. 18, 1897. 

Complaints of nonpayment of debts due from officers on the active list and under 
the control of department commanders are in practice referred for the "necessary 
action " to the proper department headquarters and the complainants notified of the 
above ruling of the Secretary of War. The complaints need not be accompanied by 
or be in the form of formal charges — a statement of the acts and conduct complained 
of is sufficient as a basis for investigation. Formal charges can be prepared when as 
a result of the investigation such action is required. 



ARMY I B 2 b (2) (b). 73 

to be inspected by officers of the Inspector General's Department. 
a 6363, Jan. 21, 1909. 

I B 2 b (2) (6). In executing a sentence of forfeiture of pay, the 
pay forfeited in the absence of specific statutoiy authority for the 
purpose can not be diverted from the General Treasury to any par- 
ticular fund. Thus where a soldier convicted of the embezzlement of 
certain subsistence stores was sentenced to a forfeiture of pay, held 
that the Secretary of War would not be authorized to cause the pay 
forfeited to be added to the appropriation for the Subsistence Depart- 
ment so as to make good to the same the amount lost by the embezzle- 
ment. R. 43, 85, Nov., 1879. 

I B 2 b (3) {a). The act of Congress of August 19, 1890, vested in 
the Secretaiy of War a simple authority to purchase land for the pur- 

Soses of the Chickamauga and Chattanooga National Park, without 
irection or indication as to the terms of such purchase. Deeds were 
offered by its owners containing two conditions — (1) a condition sub- 
sequent to the effect that unless certain improvements should be made 
the grant should become nuU and void; (2) a proviso that in case the 
United States should at any future time condemn other land of the 
grantor, he should then be paid for the same an amount to be meas- 
ured by the value, determined by appraisement, of the lands conveyed 
by the present deed — an arrangement which would be equivalent to 
giving him a claim on the United States for an unliquidated amount. 
Held that such conditional conveyances could not legally be accepted 
by the Secretary of War, no authority being given him by the statute 
to bind the Government by conditions or stipulations in regard to the 
title or purchase. P. 56, 263, Nov., 1892. 

I B 2 b (4) . The Secretary of War has power to sell public property 
that has been used. Held, therefore, that he can fix the sale price of 
property which has been in use and repaired. C. 26372, Mar. 17, 1910. 

I B 2 b (5). Held that there is no legal authority for the loan, by 
the Secretary of War, of Government property to other executive 
departments or to parties not in the Government service. C. 19282, 
Mar. 2, 1906. 

I B 2 c (1). Under section 1076, R. S., the Secretary of War (or 
other head of a department) may refuse or omit to comply with a call 
of the Court of Claims for information or papers when he considers 
that it would be prejudicial to the public interests to furnish them: 
The statute makes him the sole judge on the subject. So advised here 
that a certain affidavit, thus called for, be, on account of the peeuhar 
nature of its contents (as well as its apparent immateriality) withheld. 
P. 26, 497, Sept., 1888. 

I B 2 c (2). The caUs upon the War Department by subordinate 
officers and employees of other executive departments for extended 
copies of mihtary records have become so numerous and compliance 
with them has become so burdensome and expensive as to call for 
serious consideration in the interests of economy and the dispatch of 
pubhc business. As a rule, these records are desired for the purpose 
of ascertaining some fact relating to mihtary status or services wliich 
it is primarily the duty of the War Department to determine. Held 
that where such a fact is to be determined judicially it is the practice 
of the department to produce either the original records or duly 
authenticated copies in court. Held, however, that when such a fact 



74 ARMY I B 2 d (l). 

is to be ascertained for executive purposes it can only lead to con- 
fusion, conflict, and waste of public time to have numerous different 
members of the executive branch examining the same records for the 
purpose of determining the same questions, and that it is wholly un- 
necessary. Held, therefore, that when such a fact is to be ascertained 
for the purpose of executive action, and no statute requires a different 
course, the War Department will answer proper inquiry as to the fact, 
ascertaining it from the examination of its own records, but advised 
that the department will not hereafter (Nov. 2, 1901) furnish copies 
of records or statements to enable officers or employees of other 
executive departments to review decisions made by the War Depart- 
ment upon purely military questions or to make independent decisions 
with regard to such questions.^ C. 10306, July 8, 1910. 

I B 2 d (1). The Secretary of War is without authority, unaided 
by legislation, to grant franchises in navigable waters or elsewhere. 
C. 9323, Nov. 23, 1900. 

I B 2 e (1). Held that in view of the general language of the law ^ 
the Secretary ol War could legally delegate to the Chief of Engineers 
his authority to direct a temporary transfer of property purchased 
from one appropriation for a particular project and not for the time 
required therefor for use in another improvement upon such equitable 
adjustment of charges and credits as may be agreed upon by the 
district officers under direction of the Cliief of Engineers. C. 16202, 
Apr. 20, 1904; 16899, Sept. 16, 1904. 

I B 2 f . A question having arisen as to the power of the Secretary 
of War to limit the number of aids allowed to general officers in the 
operation of sections 1097 and 1098 R. S., held that such restrictive 
action would be unlawful, as the power of general officers to appoint 
the number of aids to which they are entitled being granted by 
statute can not be abridged by an executive regulation. C. 14819, 
June 17, 1903. 

I B 2 g. Section 4 of the act of May 22, 1908 (35 Stats. 244), 
requires the head of each executive department and other Govern- 
ment establishment at Washington to submit at the beginning of 
each regular session a statement to Congress showing what officers or 
employees have traveled on official business from Wasliington to 
points outside of the District of Columbia. Held that the Secretary 
of War is not required, under this law, to make a report of travel by 
officers of the Army in pursuance of competent military orders, which 
travel is covered hj Army appropriations. C. 23876, Dec. 3, 1908. 

I B 2 h (1). Advised that, under the prohibitory provisions of the 
act of July 7, 1884 (23 Stat. 227), a work entitled the ''Manual of 
Calisthenics " can not legally be authorized or caused, by the Secretary 
of War, to be printed by the Public Printer, unless the same be, in the 
words of the act, "necessary to administer the public business." 
The term ''necessary" has been construed, in similar connections, as 
meaning — not absolutely necessary, but reasonably necessary or 
clearly conducive, to the object expressed. (See the Legal Tender 
Cases, 12 Wallace, 457, 539.) The Secretary of War should be as- 
sured that the proposed publication would clearly and materially con- 
duce to the due administration of the public business before causing 

' See War Department circular of Nov. 2, 1901. 
2 See sec. 5, act of June 13, 1902 (32 Stat. 373). 



ARMY I B 2 h (2). 75 

the printing to be done by the PubHc Printer. P. 60, 44^, Dec, 1891. 
Similarly advised in regard to a translation, by an Artillery officer, 
from the Russian, of lectures on the subject of the "Resistance of guns 
and interior balhstics, " a precedent being cited of a work by a surgeon 
of the Army, entitled "Notes on Military Hygiene," held by the Sec- 
retary of War (Apr., 1890) to be valuable though not necessary in 
the sense of the statute. P. 50, U4, Dec, 1891; C. 18579, Sept 
IS, 1905. 

I B 2 h (2) . Held that the Secretary of War ''is authorized by law " 
(see public printing and binding act of January 12, 1895) to have the 
Commissary's Handbook, or any other similar work needed in the 
business of the War Department, printed at the Government Print- 
ing Office and paid for from the War Department's allotment of the 
appropriation for "public printing and binding." C. 1679, Aug., 
1895; 18579, Sept. 13, 1905. 

I B 3. Held that during the illness of the Secretary of War or 
during his temporary absence from the seat of government the As- 
sistant Secretary of War must, if present, serve as Acting Secretary 
of War, unless the President shall chrect otherwise ; but that by direc- 
tion of the President the duties of the Secretary may, whether the 
Assistant Secretary be present or absent, be devolved upon (a) the 
head of any other executive department; (6) any other officer in any 
of the executive departments whose appointment is vested in the 
President by and with the advice and consent of the Senate ; (c) the 
commanding general of the Army, if there be one ; or {d) the chief of 
any military bureau of the War Department; and that the officers 
cornprised in classes (&) and {d) include, among others, the Cliief of 
Staff, The Adjutant General, the Inspector General, the Judge Advo- 
cate General, the Quartermaster General, the Commissary General, 
the Surgeon General, the Paymaster General, the Chief of Ordnance, 
the Chief of Engineers, the Chief Signal Officer, and the Chief of the 
Bureau of Insular Affairs. C. 18175, Sept. 7, 1911. 

I B 4 a. The War Department has no special regulations covering 
the matter of the qualifications of attorneys appearing before it. In 
practice any attorney who has le^al authority to represent a client 
in a particular matter will be heard by the department in that matter. 
C. 2931, Feb., 1897, to Mar., 1900. 

I B 5 a. By the act of June 22, 1870 (16 Stat. 162), the whole 
matter of the employment of counsel in cases of a public nature, 
and the settlement of their compensation, has been taken from 
the chiefs of the other executive departments and transferred to the 
Attorney General. Section 189, R. S. (derived from sec. 17 of said 
act), provides generally that "No head of a department shall 
employ attorneys or counsel at the expense of the United States; 
but when in need of counsel or advice shall call upon the Department 
of Justice, the officers of which shall attend to the same." The 
subject is regulated in detail by sections 356 to 367, R. S.; and when 
an officer or soldier gives notice of a suit or prosecution commenced 
against him for an act done in the due performance of a military 
duty and applies to be defended at the expense of the United States, 
the Secretary of War, if he deems the case to be one in which such 
action will be just and expedient, will refer the papers to the Attorney 
General for the proper action. P. 37, 99, June, 1876; P. 50,363, 



76 AEMY I B 5 a. 

Nov., 1891; 62, 32, Oct., 1893; C. 11 468, Nov. 8, 1901; 12208, Mar. 15, 
1902; 14570, Ayr. 29, 1903; 21164, Feb. 19 to Sept. 3, 1907. 

In the following instances the officer sued or prosecuted was con- 
sidered to have acted in the performance of his military duty, and the 
Attorney General was requested to designate the proper assistant 
United States attorney to appear on the officer's behalf: Where a 
constructing quartermaster was sued by a contractor for alleged 
arbitrary action in making the contractor "replace certain shutters 
on the windows of a building he was constructing" {C. 12208, Mar. 15, 
1902) ; where an officer, in obedience to the orders of his commanding 
officer, undertook to drive off the military reservation a number of 
trespassing horses, and it was alleged that he had exceeded the 
necessities of the case and used undue severity in removing them, 
and suit had been brought against him as a private individual to 
recover damages {C. 22007, Aug. 30, 1902) ; where an officer on duty 
at Sea Girt was sued for a statutory penalty prescribed by State laws 
for not stabling the horses of his battery {C. 27740, Aug. 19, 1908); 
where an officer traveling on duty in a Government conveyance in 
which he was merely a passenger was sued for damages resulting 
from an injury caused by the alleged negligence of the driver {C. 21739, 
July 1, 1907); so also where an officer was traveling on duty as a 
passenger in a Government automobile in New York City and the 
machine ran over a pedestrian^ {C. 28517, June 12, 1911); where 
a civilian attempted to sell fruit on a reservation in violation of the 
orders of the commanding officer, who had the civilian confined in the 
guardhouse for a short period of time pending an investigation by 
him, and the civilian sued the commanding officer as a private in- 
dividual in the civil courts for damages for the alleged illegal con- 
finement, the commanding officer urging that his action was strictly 
in the line of duty {C. 28517, Oct. 7, 1911); where a fireman on a trans- 
port was discharged for refusing to do his dut}^ and thereupon sued 
the transport quartermaster in the civil courts as a private indi\ddual 
(C. 28517, Oct. 19, 1911) ; where a post exchange officer contemplated 
bringing an action against a corporation for the price of certain 
articles sold to the exchange (C. 19268, Mar. 1, 1906) ; and so where 
a so-called company exchange was carried on at a post by the consent 
of the commanding officer, although such exchange was not authorized 
by law or regulations, and an action was brought against the indi- 
vidual officers in charge of the exchange for the debts of the concern, 
held that owing to the fact that the exchange had existed by the 
authority of the commanding officer and owing to other peculiar 
circumstances of the case, it would be proper for the officers sued 
to request to be provided by the Government with counsel (C. 20279, 
Apr. 20, 1907) ; where a former officer of the volunteers was sued by 
a former soldier of his regiment for alleged false imprisonment grow- 
ing out of circumstances connected with the former military service 
of all parties (C. 10150, Apr. 4, 1901) ; but where a suit was brought 
by the parents of a deceased soldier against a railroad company for 
damages for alleged negligence in causing the death of the soldier, 
Tield that as the United States was not a party to the suit and had no 

^ In this instance the case was removed to the United States circuit court for trial, 
and the expense of the removal bond was paid from the appropriation for contingencies 
of the Army. 



ARMY I B 5 b. 77 

legal interest in it there was no obligation to represent the parents 
in their litigation {C. 16^78, June 16, 190 4) ', so where an officer was 
sued for damages for the removal of trespassing animals from a 
military reservation with alleged undue and unlawful severity, and 
under instructions of the trial court the only question at issue was 
as to the manner in which the officer had exercised his authority, and 
a judgment had been rendered against the officer and this judgment 
had been affirmed by the court of last resort, held that the Govern- 
ment would not be warranted in furnishing counsel or taking other 
affirmative action to resist the execution of the judgment.^ G. 22007, 
Apr. 13, 1911. 

I B 5 b. Where a discharged volunteer soldier made out fraudulent 
final statements and presented the same to a paymaster for payment, 
advised that the matter be referred to the Department of Justice, 
that the man might be proceeded against under section 5438, R. S. 
C. 7284, Nov., 1899. _ 

I B 6 a. In a case in which, in 1873, a judgment was obtained in a 
Territorial court against two officers for an act performed in good 
faith and in the zealous and conscientious discharge of what was 
believed to be a public duty devolved upon them by an order of the 
department commander, and this judgment was subsequently (in 
1877) affirmed by the Supreme Court of the United States ^ — the 
officers having been defended by counsel assigned to defend them by 
the Department of Justice — advised that, notwithstanding the fact 
that their act had been thus determined to have been illegal, an 
application made by them to Congress for an appropriation to defray 
the amount of the judgment, woiud properly be favored by the Sec- 
retary of War.3 R. 4I, 433, Oct., 1878. 

I B 6 b. Held that a proper case had arisen for congressional relief 
when, due to no fault of the disbursing officer, his consignment of 
public money arrived short of the proper amount, and recommended 
that such rehef be requested. C. 25605, Feb. 4, 1910. 

1 B 7 a. The Army appropriation act for the year ending June 30, 
1896, made the usual appropriation "for cloth, woolen material, and 
for the manufacture of clothing for the Army; for issue aiid sale at 

^ So where a soldier was arrested and prosecuted in the United States court for killing 
another soldier and was without funds and unable to employ counsel, and it was be- 
lieved that he would not obtain justice unless properly defended, the Department 
of Justice declined to undertake the defense, holding that as the United States at- 
torney was prosecuting, it would not be proper for a representative of the Attorney 
General also to defend the case, but suggested that the Attorney General could call 
for a report and direct a nolle pros if there was not sufficient reason for a trial. See 
C. 5684, J. A. G. 0. 

2 Bates V. Clark, 5 Otto, 205. 

3 By the acts of Mar. 3, 1863, c. 81, s. 4; May 11, 1866, c. 80, s. 1; and Mar. 2, 1867, 
c. 155, the order or authority of the President is made a defense in any court of the 
United States or of the States, to any prosecution or suit instituted against an officer 
or soldier of the Army, for an arrest, trespass, or other act made or done by such 
authority, during the War of the Rebellion. Under these Statutes it would appear 
that an officer or soldier could not be made liable to punishment or damages for any 
legitimate act performed during the war in the line of hia duty or under the orders 
of a proper superior; otherwise, however, as to injuries or wrongs done in the absence 
of legal orders, or on the personal responsibility of the individual. See, as illus- 
trating this subject the decision of the Supreme Court in Beard v. Burts, 5 Otto, 434. 

In the case of In re Murphy, Woolworth, 141, it was held by Justice Miller that the 
act of 1867 was ex post facto and unconstitutional, in so far as it assumed to validate 
punishments imposed by military courts which would otherwise be invalid. 



78 ARMY IBS. 

cost price according to the Army Regulations." Army Regulations 
prescribe that commanding officers may order necessary issues of 
clothing to military prisoners who have no clothing allowance from 
deserters' or other damaged clothing or from clothing specially pro- 
vided for the purpose. Damaged clothing and clothing specially 
provided would be unissued clothing purchased from the appropria- 
tion for clothing, camp and garrison equipage. This paragraph of 
the regulations should be accepted as an authoritative construction 
of that part of the appropriation act relating to clothing, etc., to the 
effect that the word ''Army," as used therein, includes general 
prisoners. Held, therefore, that the Secretary of War could legally 
authorize issues of overcoats, arctic overshoes, woolen mittens, and 
flannel shirts to general prisoners,^ as a charge against the appropria- 
tion for clothing of the Army. C. 2057, Mar.., 1896. 

I B 8. There is no law expressly relating to the subject, but the 
Secretary of War in the exercise of his general power over the move- 
ments of members of the Army, may order a hospital attendant, an 
enlisted man, to accompany an invalid discharged soldier to the 
Soldiers' Home. C. 2592, Sept., 1896. 

I B 9. The Secretary of War has authority to authorize dredging 
operations, in so far as the interests of navigation are concerned, but 
IS without jurisdiction to give permission to dredge for gold in the 
navigable waters of the United States.^ G. 7^87, Jan. 6, 1900; 7982, 
Apr. 9, 1900; 8072, Apr. 23, 1900; 8408, June 13, July 9, 1900 and 
June 8, 1910; 12918, June 26, 1902; 22845, Mar. 5, 1908. 

I B 10. Held, that the Secretary of War and not the Secretary of the 
Navy is responsible for the construction of fortifications and seacoast 
defenses. C. 12389, Apr. 9, 1902. 

I B 11. While comity enjoins that the authorities of the United 
States should in general, and in any proper manner, facilitate the legal 
operations of State officials, yet no such obligation can be deemed to 
exist where the rendering of the desired facilities would materiaUy 
interfere with, or embarrass, the due prosecution of a public function 
under an act of Congress. Held, therefore, that the Secretary of War 
may decline to order a commanding officer to furnish a list of names 
of employees under his charge to a civil official for tax collection 
purposes. 0. 1300, Apr. 27, 1895. 

I C 1. On the question of whether a soldier on furlough might be 
employed as a servant by an officer, held, that under the wording of 
section 1232, R. S., "no officer shall use an enlisted man as a servant 
in any case whatever," there would be no authority in law for except- 
ing furloughed soldiers from the operation of the statute. C. 1867, 
Nov. 23, 1895. 

I C 2. An officer or soldier can not be deprived of his pay by means 
of any civil process of attachment or levy on execution. So where a 
wife, m an action of divorce against her husband, a captain in the 
United States service, obtained an interlocutory judgment for an 
allowance pendente lite, held, that there was no precedent or legal 
ground for requiring him to satisfy the amount of such judgment out 
of his pay. R. 8, 493, May, 1864; G. 13097, Aug. 8, 1902; 13439, 
Oct. 14, 1902. 

' See Circular 5, A. G. O., 1896, authorizing such issues to be made when in the judg- 
ment of the department commander necessary to prevent suffering. 
* See sec. 26, act of June 26, 1900 (31 Stat. 321). 



AKMY I C 3. 79 

I C 8. In the absence of express authority from Congress, an officer 
of the Army can not accept remuneration from a foreign power in 
return for miUtary or other pubhc service rendered, without a viola- 
tion of Art. I, sec. 9, par. 8, of the Constitution. Nor can such an 
officer (in the absence of such authority) properly be granted a leave 
of absence for the purpose of rendering foreign service, even without 
compensation, since such a proceeding would be contrary to the spirit 
and mtent of the laws relating to the Army, which clearly contemplate 
that the services of its officers shall be rendered to the United States.* 
R. 37, U8, Afr., 1876; C. 20396, Apr. 15, 1910. 

I C 4, Held, that the acceptance by an officer of a present from 
enlisted men recently under his command is incompatible with the 
proper relation between officers and enlisted men. C. 10102, Mar. 
29, 1901. 

I D 1 a. Under the law the power of appointing cadets is in the 
President, and with the exception of the cadets appomted at large, the 
appointments are required to be made from ''actual residents of the 
congressional or Territorial districts or of the District of Columbia, 
respectively, from which they purport to be appointed." The privi- 
lege of selecting those appomted from congressional districts, which 
has been accorded to Members of Congress, is one which rests on reg- 
ulation and long practice, and this privilege is limited to the nomina- 
tion of such persons as meet the requirements of law. In making the 
appointments it is the duty of the President to appoint only such per- 
sons as comply with the provisions of the statute, and the decision of 
the Representative in the matter does not relieve him from this duty. 
R. 42, 601, Apr., 1880; C. 6615, June, 1899; 16602, July 19 and 
26, 1904; 23425, June 13, 1908. 

ID 1 a (1). A State having been redistricted by an act of its 
legislature, held, (1) That the cadets now at the Military Academy 
appointed from congressional districts of that State should, where the 
numbers of then' districts had been changed, be credited to the new 
districts, so as to appear on the list as representing the districts now 
actually including the towns, etc., which were their places of resi- 
dence when appointed; (2) That existing conditional appointments 
made under section 1317, H. S., providing that such appomtments 
shall be made one year in advance of admission to the academy, and 
which accordingly had been made prior to the redistricting, were valid 
and should stand, the appointees being deemed entitled to admission 
at the designated time, subject to the prescribed conditions; (3) That 
future appointments should be made according to the districts as 
newly established and numbered; any increased delay that might 
thus be caused in the filling of vacancies for appointments for par- 
ticular districts being but a necessary result of the new legislation. 
R. 39, 575, June, 1878. 

I D 1 a (2). vSection 1317, R. S., prescribes that cadets shall be 
appointed one year in advance of the time of their admission to the 
academy, etc. It is to the date of appointment and not to date of 
admission that the qualification as to residence (sec. 1315, R. S.) 

* Note in this connection the opinion of the Attorney General, in 15 Op., 187, to 
the effect that the Centennial Commissioners appointed by the President under the 
act of Mar. 3, 1871, were officers of the United States, holding offices of trust (though, 
in the absence of salary, not of profit), and that therefore, in view of the prohibition 
of Art. I, sec. 9, par. 8, of the Constitution, they could not, without the authority of 
Congress, legally accept presents from a foreign Government. 



80 AEMY I D 1 a (2) (a) [1]. 

refers. Thus held, that a change of residence by a father would not 
affect the appointment of his minor son, legally made prior to the 
change of residence.* P. 46, 288 and 303, Feb., 1891. 

ID 1 a (2) (a) [1]. Assuming that an emancipated minor is so far 
sui juris that he can acquire and change domicil like a person of full 
age, the same rule of intention applies to determine the question of 
domicil m his case as in any other — there must be an animus 
manendi. So where an alleged emancipated minor took up a so-called 
residence in a congressional district other than that of his father's 
habitation, which residence was intended to be merely temporary 
and was resorted to for the sole purpose of securing an appointment 
as cadet from that district, held, that such supposed emancipation 
and pretended change of domicil could have no legal effect in quali- 
fying the party for such an appointment under section 1.315, R. S. 
R. 66,473, Aug., 1888. 

I D 1 a (2) (a) [21 [a]. An unemancipated minor can acquire no 
residence distinct from that of his father or parent ;2 otherwise in the 
case of an emancipated minor. C. 6615, June, 1899. So held 
that unemancipated minors whose fathers resided in certain States 
and congressional districts could not, by removing to and abiding in 
other States or districts, acquire such an ''actual residence" therein 
as to render them ehgible for appointment as cadets under section 
1315, R. S.,=* R. 29, 83, July, 1869; 30, 528, July 23, 1870; 31, 313, 
Apr., 1871. 

I D 1 a (2) (a) [2] [a] [A]. Held that the mere fact that an officer of 
the Army was on duty under military orders in a certain Territory 
did not make his minor son eligible for appointment as a cadet from 
such Territory, the fact of the father's being thus on duty not being 
sufficient evidence of his being a legal resident therein. R. 30, 528, 
July, 1870. So where an Army officer was temporarily on duty as 
military instructor at a college in a congressional district which was 
not his actual residence, held that his unemancipated minor son com- 
morant there was not eligible for appointment as a cadet from such 
district. C. 1220, Apr., 1895. 

I D 1 a (2) (fl) [2] [a] [B]. Held that a minor whose father was a 
foreigner domiciled in Cuba, and who was himself commorant in the 
United States only for the purpose of being educated, was not eligible 
for appointment as a caclet from a congressional district. R. 35, 
446, June, 187 4. 

I D 1 a (2) {h) [1]. A party was duly nominated and appointed 
as a cadet for a certain congressional district one year in advance 
agreeably to sections 1315 and 1317, R. S. Later another party was 
by the same Member of Congress nominated for Si. provisional appoint- 
ment — i. e., an appointment in the event of the regular nominee 
being found disqualified or failing to pass the examination — and was 
appointed accordingly. Subsequently, the regular nominee having 
resigned his appointment, a third person was nominated in his stead 
by the same Member and (under sec. 1317, R. S.) appointed to fill 
the vacancy. Held, that this appointment was a valid one, and that 

1 See 13 Op. Atty. Gen., 130. 

2 See Crawford v. Wilson, 4 Barb. 505; Brown v. Lynch, 2 Bradf., 214; Wheeler v., 
Burrow, 18Ind.,14; Hiestandti. Kuns, SBlackf., 345; Allen v. Thomasen, 11 Humph., 
536; Hardy v. De Leon, 5 Texas, 211; Story, Conflict of Laws, sec. 46. 

^ This opinion was concurred in by the Attorney General, in 13 Op., 130. 



AEMY I D 1 a (2) (c). 81 

the provisional appointee had no legal claim to have received the 
same. The statute law does not recognize such ''provisional" 
appointments, the same being resorted to in the practice of the War 
Department, as a matter of convenience, in order that there may be 
a person at hand to take the place of a regular nominee who may fail 
at the last moment, and the embarrassment of a vacancy occurring 
at that time be thus as far as possible avoided. The provisional 
appointee, or "alternate," was not entitled to be substituted for the 
regular appointee on his resignation, and not having been so sub- 
stituted, but another person having been selected, he remained with 
precisely the claim which he had originally, viz, to present himself 
for examination and appointment in case the regular nominee was 
not accepted, the only difference being that the regular nominee had 
meanwhile been changed. R. 42, 162, Feb., 1879. 

I D 1 a (2) (c). As Alaska is an organized Territory within the 
meaning of section 1315, R. S., as amended by section 4 of the act of 
June 6, 1900 (31 Stat. 656), lieU that a cadet may lawfully be 
appointed to the Militaiy Academy from that Tenitory. C. 19179, 
Fel. 10, 1906. 

I D 1 b (1). Section 1318, R. S., prescribes that appointees to the 
MiUtary Academy shall be admitted only between the ages of 17 and 
22 years. The academic year begins on September 1. Therefore 
lield that an appointee who would not be 17 until the preceding 
August could, without a violation of the statute cited, be permitted 
to take the June examination and, if found quahfied, to remain at 
the academy at his own expense until of lawful age to be admitted. 
C. 3886, Feb., 1898. A cadet over 22 years of age who has been 
separated from the Mihtary Academy is not eligible for reappoint- 
ment or reinstatement. C. 3852, Feb. 8, 1898. 

I D 1 c (1). If a person whose nomination as cadet is proposed 
has obtained a divorce from a bond of matrimony^ (a vinculo 7natri- 
monii), he would seem to be an unmarried man within the meaning 
of paragraph 24, Regulations for the United States Military Academy, 
and as such would be iwima facie eligible for appointment as a cadet 
at the Military Academy upon the presentation of a duly authenti- 
cated copy of the decree of absolute divorce granted by the State 
court having jurisdiction of the case and of the parties. C. 27225, 
Sept. 7, 1910. 

ID 1 d (1). Where a regular appointee as cadet, having resigned, 
was again nominated to fill his own vacancy, the same not having 
meanwhile been filled by the appointment of another, held that the 
President was empowered under section 1317, R. S., to reappoint 
him. R 37, 195, Feb., 1871. 

I D 1 d (2). In view of the provisions of section 1325, R. S., held 
that the President would not oe empowered to reappoint a cadet 
discharged as deficient in either conduct or studies except upon the 
recommendation of the academic board. R. 4^, 372, July, 1880; 
C. 3796, Jan., 1898; 16602, July 19, 1904. 

I D 1 d (3). Section 1325, R. S., provides that no cadet shaU be 
reappointed to West Point found to be deficient in conduct and dis- 
cipline under the rules of the institution. Held that this prohibition 
applies to the case of a cadet dismissed by sentence of general court- 
martial. C. 29329, Dec. 26, 1911. 

93673°— 17 6 



82 ARMY I D 2 a. 

I D 2 a. A cadet found deficient and recommended for discharge 
was granted a furlough without pay by the Secretary of War; as no 
service was rendered by the cadet during the period of his furlough, 
held to be a legitimate exercise of authority by the Secretary of War. 
C. 15709, Jan. 16, 1904. 

I D 2 b. Held by the Secretary of War in July, 1884, in view of the 
requirements of section 1325, R. S., that a cadet who is reported as 
deficient in either conduct or studies and recommended to be dis- 
charged from the academy shall not, unless upon recommendation of 
the academic board, be reappointed to the academy, etc., and that 
the duty of the Secretary of War in executing the findings and recom- 
mendation of the board was ministerial in character. 0. 3796, July 
23, 1884. 

I D 3 a. Cadets are amenable to trial by court-martial for violations 
of the regulations of the academy, as "conduct to the prejudice of 
good order and military discipline." ' R. 36, 129, Dec, 1874; 61, P. 
370, Sept., 1893. The records of trials of cadets by general courts- 
martial appointed by the superintendent pass directly to the Secre- 
tary of War for review and not to the commanding general, 
Department of the East. C. 15821, Jan. 20, 1904. 

I D 3 b (1). The superintendent of the Military Academy can have 
no power, by virtue of a regulation of the academy, to try andpunish 
a cadet for a military offense for which, under the Articles of War, he 
is amenable to trial by court-martial. A regulation assuming to con- 
fer upon him such power would be in contravention of law and inop- 
erative. Otherwise of a regulation which merely authorized a measure 
of school discipline. So, where a cadet, on arraignment for a military 
offense, pleaded in bar that he had already, for the same offense, been 
punished by reduction from cadet officer to cadet private, under par. 
107, Academy Regulations, Jield that, regarding such reduction as a 
form of school disciplme only, the plea was properly overruled by the 
court. P. 61, 373, Sept., 1893; a 9704, Jan. 6, 1910; 19330, Mar. 
10, 1906. It is within the authority of the President to suspend a 
cadet without pay in the operation of the Military Academy Regu- 
lations, a 10513, May 20, 1901; 15709, Jan. 16, 1904. 

I D 3 b (2) (a). The word "summarily," in its ordinary sense, 
strongly implies that the established course of legal procedure, namely, 
trial by court-martial, is to be disregarded. Having regard to this 
fact, to the absence of statutory provision expressly requiring resort 
to courts-martial as in case of naval cadets, to the existence of regu- 
lations at the time of the enactment authorizing investigation by 
boards of oflScers, and considering also the opinions expressed in the 
debate, I am of the opinion that the act of March 2, 1901 (31 Stat. 911 ), 
is properly construed as establishing the policy of administrative 
dismissal by the Secretary of War for the offense of hazing upon the 
ascertainment of guilt by investigation of the superintendent of the 
Military Academy, assisted by boards of officers or such other agencies 
as may be authorized by regulation. 

' In this connection may be noted the opinion of the Solicitor General ( 15 Op. Atty. 
Gen., 634) that, except for the offense of hazing, sj^ecially made punishable by the act 
of June 23, 1874 (18 Stat. 203), cadets of the Naval Academy are not subject to trial by 
court-martial. That cadets of the Military Academy are a part of the Army, see sec. 
1094, R. S. 



ARMY I D 4. 83 

The act of March 2, 1901 (31 Stat. 911), does not, however, operate 
to bar trial by court-martial where the act charged involves the per- 
petrator in the commission o/ crime. Wliere the criminal aspect of 
the act charged predominates, that is, where something more than 
hazing is involved, trial by court-martial may be resorted to and is 
the preferable course to pursue. 

The procedure in respect to cadets charged with hazing is now regu- 
lated by the act of April 19, 1910 (36 Stat. 312). C. 9704, Jan. 6, 1910; 
29329, Dec. 27,1911. 

I D 4. A cadet applied to have his name changed on the Register of 
the Military Academy. Held that the Secretary of War would not 
be empowered to change the name as such,- though he might make a 
new contract with the cadet in the new name. But advised, as the 
preferable mode of proceeding, that the cadet first procure the name 
to be changed in the mode prescribed by the statutes of his own State, 
after which the register would of course be made to correspond. P. 25, 
126, June, 1888. 

I D 5. Where two cadets were ordered from West Pomt to Wash- 
ington for a special duty, on completion of which they returned to 
West Point, Jield, that not being commissioned officers they were not 
entitled to mileage. C. 2^762, Apr. 12, 1909. 

I D 6. The act of December 20, 1886 (24 Stat. 351) granting leaves 
of absence to graduates from the JVIilitary Academy, from tlate of 
graduation, and after graduation "when in accordance with uniform 
practice," is sufficiently broad to warrant leave with pay from date of 
graduation, June 12, the approximate date of graduation, to Septem- 
ber 30 following, but the regulation should be amended to correspond 
to existing practice. C. 1334-6, Dec. 8, 1903. Held also, that said 
leaves are not cumulative. C. 13346, Dec. 8, 1908. Held further, 
that where an officer is ordered back to duty at the academy during 
graduating leave, time so spent should be deducted from said leave 
and may be taken advantage of after September 30. C. 13346, Apr. 
17, 1908. 

I E 1 a. The warrant or certificate given to a noncommissioned 
officer is as much the personal property of the individual as is the 
commission given to a commissioned officer. In the absence of any 
statute or regulation requiruig that a sergeant or corporal shall sur- 
render his warrant on being reduced to the ranks (or dishonorably- 
discharged), he may retain it with the same right as that by which 
an officer retains his formal commission on being dismissed. R. 4^' 
310, July, 1878. 

I E 1 b. It being the purpose of par. 271, Army Regulations, 1908 
(276 of 1910), to secure tne continuance of their status as such to non- 
commissioned officers who are absent sick, due to disabihty or wounds 
incurred in line of duty; held, that a first-class private, wliile absent 
undergoing treatment at Fort Bayard, N. Mex., was entitled to hold 
his rating as first-class private. C. 25760, Nov. 6, 1909. Held other- 
wise, however, as to first sergeants and company quartermaster and 
stable sergeants. C. 25760, Oct. 4, 1910. 

Paragraph 271, Army Regulations, 1908 (276 of 1910), forbids the 
reduction of a noncommissioned officer while absent on account of 
wounds or disability incurred in the line of duty; par. 268, Army 
Regulations, 1908 (273 of 1910), vests the selection of first sergeants 



84 AEMY I E 2 a. 

and company quartermaster and stable sergeants in the company 
commander; Jietd, that these regulations should be read together; as 
the sergeants last named are detailed by the company commander, 
they may be relieved by other sergeants with the same authority; such 
relief from detail not constituting "reduction" within the meaning of 
par. 271 (276 of 1910) ; a process which involves degradation in rank, 
which is not the case where noncommissioned officers are relieved 
from duty as first sergeants, company quartermaster, and stable ser- 
geants by other noncommissioned officers of the same grade, but con- 
tinue to hold the rank of sergeant equally after as before their relief. 
a 25760, Oct. 4, 1910. 

Held, that where the reduction of a noncommissioned officer was 
primarily based upon his inefficiency in, or incapacity for, performing 
the duties of his office, his reduction to the ranks, though accom- 
plished while he was absent due to sickness, was not witliin the pro- 
hibition of the paragraph. C. £5-760, Jan. 20, 1911. 

Held, also, that the detail of a sergeant as first sergeant of his com- 
pany, by the company commander, the first sergeant being absent 
sick due to causes arising in line of duty, did not fall within the pro- 
hibition of the paragraph. C. 25760, Oct. 4, 1910. 

I E 2 a. Section 1142, R. S., authorized the appointment of com- 
missary sergeants from ''sergeants of the line of the Army who shall 
have faithfully served therein five years, three years of which in the 
grade of noncommissioned officers." Wliere an applicant for appoint- 
ment had served five years, about two and a half years of which as 
noncommissioned officer, and six months as commissioned officer of 
United States Volunteers, it was held, independently of the question 
whether the service in the volunteers could be counted in any event, 
that service as a commissioned officer could not be computed as service 
in the grade of noncommissioned officer expressly required by the 
statute. C. 6793, Aug., 1899. 

I E 2 b. The act of July 5, 1884 (23 Stat. 109), in authorizing the 
Secretary of War to appoint post quartermaster sergeants, provides 
that they shall be selected by examination from the most competent 
enlisted men in the Army who have served at least four years and 
whose character and education shall fit them to take charge of public 
property and to act as clerks and assistants to post and other quarter- 
masters. Held, that the Secretary of War may under this statute 
appoint as post quartermaster sergeant any enlisted man of the Army 
who may be found to possess the qualifications specified. P. Ji7 , 
169, May, 1891. 

I E 2 c. The requirement of Army Regulations that enlisted men 
of the several stan departments, etc., shall not be placed on extra 
duty without authority of the War Department contemplates that 
such authority shall be obtained prior to placing the soldier on duty ; 
this to give the Secretary of War an opportunity to pass on the case 
before the detail is made and to make it unnecessary for him to take 
nunc yro tunc action therein, with a view to avoid imposing hardsliip 
upon the soldier, where he is not satisfied that the public interest 
requires such detail to be made. C. 17173, Nov. 17, 1904. 

I E 3 a (1). On question as to whether an enlisted man could serve 
as a postmaster, held, that the law does not forbid it since section 
1222, R. S., does not in terms apply to enfisted men. C. 15297, Nov. 
27, 1909. 



ARMY I E 3 b. 85 

On question as to whether an enhsted man serving as mail carrier 
from a post office to a mihtary post might take the "oath of post- 
office employees," held, that there was no legal objection to his so 
doing. C. 15297, Mar. 1, 1907. 

I E 3 b. Section 1222, R. S., does not apply to enlisted men. But 
except perhaps in a rare case — as, for example, the case of an ordnance 
sergeant, or other member of the noncommissioned staff, established 
at a permanent station — it must in general be quite incompatible with 
the status and obligation of an enlisted man to hold any civil office or 
employment, even one held for the mere purpose of qualifying the 
party to administer oaths, as that of a notary public. R. 37, 616, 
June, 1877. 

I E 3 b (1). In a case where the permanent detail of a master 
signal electrician in its bureau of navigation was requested by the 
Philippine government, held, that although the statute (sec. 1222, 
R. S.) which provides that an officer who holds civil office by election 
or appointment vacates liis office by such acceptance and exercise 
of the functions of civil office, is not in terms applicable to enlisted 
men, the analogy prevails and should equally prevent enlisted men 
from holding or exercising the functions of civil office. Furthermore, 
Congress in providing a force of electrician sergeants in the Signal 
Corps, had it in mind that they should be exclusively employed in the 
work of that branch of the War Department, and did not contemplate 
that any of the noncommissioned staff officers so maintained should 
be permanently employed by the Philippine government. C. 26897, 
June 16, 1910. 

I E 3 c (1). Where enlisted men were detailed to assist an ord- 
nance mechanic in altering the concrete emplacements for guns of 
the seacoast artillery, held, that such duty was that which a soldier 
is expected to perform under his contract of enlistment. C. 14591, 
May 4, 1905. 

I E 4. A chief musician is an enlisted man, but not a noncommis- 
sioned officer. He is enlisted not to perforin the duties of a soldier, but 
expressly as an instructor of music. Held, that he can not legally 
be reduced to the ranks either by sentence or by order. R. 33, 33, 
May, 1872.^ Held also that he may be tried by regimental or garrison 
court, as well as by a general court. R. 31, 212, Mar., 1871. Held, 
that after the term he may engage in his profession in civil life. C. 
24179, Dec. 7, 1908. 

I E 5. Where an enlisted man who had been served at liis post 
(which was not under the exclusive jurisdiction of the United States) 
with a subpoena requiring his attendance as a witness before a civil 
court of the State, neglected to comply, held, that he was guilty of 
contempt, and, if fined by the court, had no remedy; and this though 
the service was personal and not made through the commanding offi- 
cer. P. 35, 284, Sept., 1889. 

I G 1. The terms "Regular Army" and ''Volunteer Army" are not 
significant of the methods by which these two branches of the Army 
are brought into the service. The term "Regular Army" simply 
means the "Standing Army" — the mihtary organization of the 
Government, which it is the intention ordinarily to maintain and 

1 See act of Mar. 3, 1869 (15 Stat., 318), and act of Mar. 2, 1899 (30 Stat., 978), and 
sees. 1099, 1102, and 1106 R. S. 



86 AEMY I G 2 a (l). 

continue in existence indefinitely and without regard to whether 
the country is at peace or at war; and this Army is made up of per- 
sons who engage voluntarily and directly with the United States to 
serve. C. 1301, Mar., 1895; £1406, Apr. 19, 1907. 

lG2a (1). The act of May 27, 1908 (35 Stat. 392), provides "That 
on and after the thirtieth day of June, nineteen hundred and eight, 
the Porto Rico Provisional Regiment of Infantry shall be designated 
the Porto Rico Regiment of Infantry of the United States Army." 
Held, that although this regiment consists of two battalions, its legal 
status is that of a regiment of Infantry in the line of the Army,^ and, 
as such, it would seem to be entitled to the staff officers pertaining 
to regiments in the Infantry arm. It is true that regiments of 
Cavalry and Infantry have three squadrons or battahons, but in the 
case of a regiment of Field ArtiUery, as in that of the Porto Rico 
Regiment of Infantry, the regimental organization consists of but 
two battalions, and it is to the organization which is officially desig- 
nated by Congress as a regiment that regimental staff officers author- 
ized by law may be appointed. C. 23668, Feb. 8, 1909. 

I G 2 a (1) {a). Section 4, act of May 27, 1908 (35 Stat. 392), which 
regulates the appointments to the grade of second lieutenant in 
the Porto Rico Regiment of Infantry, and whiph reads in part as 
follows: "Vacancies in the grade of second lieutenant may be filled 
by the President in his discretion by the appointment of citizens of 
Porto Rico whose qualifications for commissions shall be established 
by examination," held, not to restrict such appointments to citizens 
of Porto Rico but to be regarded as a legislative suggestion to the 
President in exercising the appointing power in the Porto Rico 
Regiment of Infantry to give especial recognition to the citizens of 
Porto Rico whether they be civilians or enlisted men of the Porto 
Rico Regiment. C. 23668, Apr. 28, 1909. 

I G 2 a (1) (h). Held, also, that the Porto Rico Regiment of Infantry 
in entitled to a chaplain, and that as citizenship in the United States 
is not required by statute as a condition precedent to the appointment 
of a regimental chaplain, a "citizen of Porto Rico" can lawfully be 
appointed chaplain of the Porto Rico Regiment of Infantry. C. 
23668, Dec. 23, 1908. 

I G 2 a (2) (a). Held, that the Philippine Scouts are a part of the 
Regular Army of the United States. C. 19272, Mar. I4, 1906. 

I G 2 b (1). On the question of whether, in view of section 4, act 
of August 5, 1882 (22 Stat., 255), a master gunner could be detailed 
for duty in the office of the Chief of Artillery, held, that that office 
was not a bureau of the War Department and did not therefore come 
within the inlubition of the statute. C. 22133, Sept. 24, 1907. 

I G 2 b (2). Section 6 of the act of February 2, 1901 (31 Stat., 741), 
contains the requirement that: ''The captains and lieutenants pro- 
vided for in this section not required for duty with batteries or com- 
{)anies shall be available for duty as staff officers of the various Artil- 
ery garrisons and such other details as may be authorized by law and 
regulations." Held, that the clause of legislation above cited refers 
not to captains and lieutenants in excess of the complements author- 
ized for companies and batteries of Coast and Field Artillery, but to 

' The 3 battalions and band of the Corps of Engmeers constitute a part of the line of 
the Army. See sec. 22 of the act of Feb. 2, 1901 (31 Stat., 754). 



I 



ARMY I G 2 b (3). 87 

officers of those grades "not required for duty with batteries or com- 
panies." The quoted portion of said section 6 is to be construed as 
a legislative recognition of the fact that in the Artillery Corps, as 
reorganized, the number of officers of the grades mentioned required 
for duty with their organizations was considerably reduced by the 
abolition of regimental organization and instruction, and that there 
would be greater necessity than in the other arms for detaching such 
officers for staff duty and other details in connection with the new 
administration of the Artillery Arm necessary to be established under 
said act; and as authorizing the War Department to adopt the neces- 
sary and appropriate means for carrying the provision into effect; 
that therefore if the Secretary of War is convinced that the end 
contemplated can be best accomphshed by carrying captains and 
lieutenants needed for such staff duty and other details upon an "un- 
assigned Ust" such means are, under the language quoted, legislatively 
sanctioned. C. 19797, May 26, 1906. 

I G 2 b (3). Held, that targets for subcaliber practice can be towed 
over areas within which are "lobster pots" without subjecting the 
Government to a claim for damages. C. 22112, Sept. 21 and 30, 1907. 

I G 3. The staff of the Army, consisting of the General Staff and 
the chiefs of the Staff Corps and mferior officers of the same, constitute 
the staff of the Commander in Chief of the Army — the President.^ 
As such, these officers are properly under the immediate direction of 
the Secretary of War, who acts for the President in the administration 
of the mihtary department. R. 38, 253, Aug. ,1876; 40, 17, Apr. ,1877. 

I G 3 a (1) (a). A vacancy having occurred in the command of a 
territorial department, a question arose as to the succession to the 
command, in the operation of par. 193, Army Regulations 1908 (195 
of 1910), held, that a colonel of the General Staff, serving as chief of 
staff of the department, was inhibited from succeeding to such com- 
mand in the operation of the regulations, as the order of the President 
detaihng an officer for duty in the General Staff places in temporary 
abeyance the office held by such officer in the arm of service or depart- 
ment of staff in which he holds a permanent commission, and during 
the period of his incumbency of office in the General Staff he becomes 
as fully an officer of the staff as if he held a permanent appointment 
therein. During such incumbency he is as powerless to exercise 
command in the line or in the Army generally as would be the case 
if he were a permanent officer of the Staff Corps. C. 23317, May 
25, 1908. 

I G 3 a (2) . It is an essential incident of departmental administra- 
tion that there should be some ofhce in which the action of the Sec- 
retary of War, in respect to the duty to which officers of the Army 
are assigned, shall be made a matter of official record ; and that office 
should also be charged vnih. the preparation and submission to the 
Secretary of War of orders changing the station of officers or appoint- 
ing them to particular duties. The Adjutant General, from the nature 
of his office, constitutes the channel of communication between the 
heads of departments and the Secretary of War in such cases, and in 

' Stocqueler, Military Dictionary, title "General staff," defines this term: "The 
body of officers entrusted with the general duties of the Army in aid of a commander 
in chief." See G. 0. 11 and 28, A. G. O., 1869; also two letters of Secretary of War 
to Lieut. Gen. Sheridan (5603, A. G. O. 1885) dated, respectively, I)ec. 9, 1884, 
and Jan. 17, 1885. 



88 ARMY I G 3 a (3). 

his office the record of the action of the Secretary thereon is made a 
matter of permanent record. 

The necessity of such a central agency as that above described is 
apparent when the enormous volume of administrative work with 
which the War Department is charged is considered. As a result of 
such an orderly disposition of the business of the department, as is 
contemplated in the General Regulations of the Army, it is possible 
for the Secretary of War to know at all times the exact stations of all 
officers of the Army and the nature of the duty upon which they are 
employed. He is also able to call for the entire record of a particular 
officer from the date of his original appointment to the Army, and in 
the operation of the existing system of efficiency reports, which are 
matters of record in The Adjutant General's Office, he is enabled to 
call for the record showing not only the nature of the duty with which 
a particular officer is charged, but the manner in which that duty has 
been performed, together with an authoritative estimate of the capac- 
ity and adaptability of the officer along several lines of professional 
activity. 

It should also be borne in mind that several important enactments 
of Congress require that the methods of administration above indi- 
cated should be adhered to and that a central bureau of record in 
respect to the stations, duties, and movements of commissioned offi- 
cers of the Army should be constantly maintained. Such are the acts 
of July 29, 1876 (19 Stat. 102), and March 2, 1901 (31 Stat. 902), reg- 
ulating the pay status of officers on cumulative leave ; the act of March 
2, 1901 (31 Stat. 903), allowing additional pay for foreign service; 
sections 1243 and 1244, R. S., and the acts of June 30, 1882 (22 Stat. 
117), March 3, 1883 (22 Stat. 457), February 16, 1891 (26 Stat. 763), 
etc., governing compulsory retirement, retirement for age, and the 
retirement of officers at fixed ages or after specific peiiods of service. 
C. 25730, Oct. 30, 1909. 

I G 3 a (3). Held that the reports of special inspections by the 
Inspector General's Department are confidential documents and that 
the testimony taken is taken as a part and parcel of such reports. 
There is no law or regulation which requires copies of the evidence 
contained in these confidential reports to be furnished to officers whose 
conduct has been under investigation. C. 23106, A'pr. 22, 1908. 

I G 3 a (4) (a) [1]. The work done in the office of the Judge 
Advocate General^ and for which the Judge Advocate General 
is responsible consists mainly of the following particulars : Review- 

1 The Judge Advocate General's Department now consists of the Judge Advocate 
General and 11 judge advocates (2 of the rank of colonel, 3 of the rank of lieutenant 
colonel, and 6 of the rank of major), and of as many acting judge advocates (tempo- 
rarily detailed with the rank of captain) as may be necessary to supplement the reg- 
ular officers so that "each geographical department or tactical division of troops" 
may be supplied with a judge advocate. See sec. 15 of the act "to increase the effi- 
ciency of the permanent military establishment," approved Feb. 2, 1901, published 
in G. 0. 9, A. G. O., 1901. 

The Secretary of War (Stanton), under date of Nov. 13, 1862, defined the duties of 
a judge advocate of the corps of judge advocates appointed under section 6 of the act 
of July 17, 1862 (12 Stats. 598), as follows: 

"Your duties will be — 

"1. Those pertaining to the office of judge advocate under the general military 
law as defined in the standard works of military jmisprudence. 

"2. To advise and direct all provost marshals or other ministerial officers, civil or 
military, in the police or other duties that may be directed by the orders of the War 



ARMY I G 3 a (4) (a) [2]. 80 

ing and making reports upon the proceedings of trials by court- 
martial of officers, enlisted men and cadets, and the proceedings of 
courts of inquiry ; making reports upon applications for pardon or 
mitigation 01 sentence ; preparing and revising charges and specifica- 
tions prior to trial, and instructing judge advocates in regard to the 
conduct of prosecutions; drafting of contracts, bonds, etc., as also — 
for execution by the Secretary of War — of deeds, leases, licenses 
gr'ants of rights of way, approvals of location of rights of way, 
approvals of plans of bridges and other structures, notices to alter 
bridges as obstructions to navigation, etc.; framing of bills, forms 
of procedure, etc.; preparing of opinions upon questions relating to 
the appointment, promotion, rank, pay, allowances, etc., of officers, 
enlisted men, etc., and to their amenability to mihtary jurisdiction and 
discipHne; upon the civil rights, liabilities and relations of military 
persons and the exercise of the civil jurisdiction over them; upon the 
employment of the Army in execution of the laws; upon the discharge 
of minors, deserters, etc., on Tmheas corpus; upon the administration 
of military commands, the care and government of military reserva- 
tions, and the extent of the United States and State jurisdictions over 
such reservations or other lands of the United States; upon the proper 
construction of appropriation acts and other statutes; upon the inter- 
pretation and eifect of public contracts between the United States and 
mdividuals or corporations; upon the validity and disposition of the 
varied claims against the United States presented to the War Depart- 
ment; upon the execution of public works under appropriations by 
Congress; upon obstructions to navigation as caused by bridges, dams, 
locks, piers, etc.; upon the riparian rights of the United States and of 
States and individuals on navigable waters, etc.; and the furnishing 
to other departments of the Government of statements and informa- 
tion apposite to claims therein pending, and to individuals of copies 
of the records of their trials under the one hundred and fourteenth 
article of war. P. 37, U, Nov., 1889. 

I G 3 a (4) (a) [2]. The reports of the Judge Advocate General to 
the Secretary of War have always been regarded as confidential com- 
munications and it has not been the pi-actice to furnish copies of them 
to parties outside the department in the absence of special authority 
from the Secretary of War. P. ^2, ^52, Sept., 1890. C. 663, Dec, 
1894; 4-013, July, ^1898, and Mar., 1899; 12660, May 26, 1902. 

.1 G 3 a (4) (o) [31. The Judge Advocate General has no adminis- 
trative jurisdiction over claims of parties employed to report the pro- 
ceedings of court-martials. C. 6191, Apr., 1899. 

Dei)artment, or commanding general, or by the Judge Advocate General from time 
to time. 

"3. Such other special duties in regard to State prisoners and measures relating to 
the national safety as- may be assigned you by the department, by the commanding 
officer, or by the judge Advocate General. 

"4. To advise the War Department, through the Judge Advocate General, iipon 
all matters within yoiu* military district whenever you may deem the action of the 
department important to the national safety and the enforcement of the laws and 
Constitution. 

"5. To apply for special instructions to the commanding general upon such mat- 
ters as may need special instruction to guide your action. 

"6. To report to the commanding general all disloyal practices in your district, and 
when prompt action is required, take such measiu-es [as may be necessary] through 
the provost marshal, military commandant, or other authority to suppress them." 



90 ARMY I G 3 a (4) {a) [4]. 

I G 3 a (4) (a) [4]. It is contrary to the practice of the Judge Advo- 
cate General's Office to give, upon request of the mihtary officers or 
the officials of a State, opinions on questions arising in the military 
administration of the State. O. 685, Nov., 1894; 1287, Apr., 1895. 
Similarly held with respect to requests made directly to the Judge 
Advocate General for opinions upon questions relating to any other 
internal affairs of a State. C. 578, Oct., 1894. (Also see militia.) 

I G 3 b (1). A line officer serving by detail under the act of Feb- 
ruary 2, 1901, in a supply department, the officers of which are 
required to be bonded, is not exempt from a bond simply because 
his office in such department vested in the operation of a detail. 
a 22292, Oct. 30, 1907; 10328, Apr. 3, 1901; 10479, May 16, 1901, 
and Oct. 30, 1907; 12318, Mar. 27, 1902. 

I G 3 b (2) {a) [1]. The cost of street-car tickets necessary in the 
delivery of commercial messages from Alaska telegraph and cable 
lines should be paid, in the case of commercial messages, out of the 
appropriation lor the operation of lines; if for purely military mes- 
sages, tickets should be furnished by the Quartermaster's Depart- 
ment. C. 17047, Oct. 22, 1904. 

I G 3 b (2) (a) [2] [d\. Where a contract was made for the trans- 
portation in time of peace of troops and supplies over a route, a part 
of which was in foreign territory held, that the contractor should 
obtain written consent of the foreign government to the passage of 
troops, and in the event of its being impossible to obtain such consent 
suggested that a stipulation be inserted requiring the contractor in 
such a case to carry the troops by another route without additional 
cost to the United States. C. 14552, Dec. 18, 1903. 

A similar stipulation should be inserted protecting the United 
States against customs charges on goods so transported through 
foreign territory. C. 14552, Dec. 18, 1903, aiid Jan. 18, 1906. 

I G 3 b (2) (a) [2] [h]. The rule of international law applicable to 
troops, that a State must obtain express permission before its troops 
can pass through the territory of another State, does not apply m 
time of peace to the transportation of Government supplies through 
foreign territory in the ordinary course of foreign commerce, and 
duties are not, as a rule, levied on such goods while in course of 
transportation. C. 14552, Dec, 1908, and Jan., 1906. Where it was 
proposed to ship the guns and horses of a battery of Field Artillery 
through Canadian territory, the guns and horses being in charge of 
the necessary number of soldiers in uniform, but otherwise unarmed, 
held, that while such a shipment does not involve the passage of a 
fully equipped body of troops through the territory of another 
nation, it sufficiently approaches it to render it of doubtful propriety 
to attempt such shipment in advance of obtaining the consent of the 
foreign nation through the territory of which the shipment is to be 
made. O. 19990, July, 1906. 

I G 3 b (2) (a) [3] [a]. Where a soldier is discharged without honor 
in Alaska, or other territorial possession of the United States, and is 
not entitled to travel allowances, held, that he is not entitled to trans- 
portation in kind at the cost of the United States, but may be con- 
veyed to the United States on a Government or chartered transport. 
C. 14937, July 15, 1903. 

I G 3 b (2) (a) [3] [h]. Held, that under the act of May 28, 1896 
(29 Stat. 189), masters, mates, pilots, and engineers on vessels that 



ARMY I G 3 b (2) (a) [3] [c]. 91 

are being used as transports by contract, if killed or wounded while 
performing such duties, have the same pensionable status as soldiers 
and sailors serving in the Army and Navy of the United States. 
C. 4331, Jan. 11, 1898. 

I G 3 b (2) (a) [3] [c\. On the question whether quartermasters on 
board United States transports can be summoned before a United 
States commissioner, on claims for pay made by seamen, remarked, 
that when an officer of the Army is served with a summons from a 
United States court it is his duty to respond to the same; that this is 
recognized by the Army Regulations and has become the practice. 
Recommended, therefore, that this course be pursued in all cases 
instituted in the United States courts for seaman's wages, but the 
officer whose duty it becomes to make response to the summons 
should forthwith notify the proper United States district attorney 
of the institution of the suit and request him to defend the same, and 
at the same time report action to the War Department, by telegraph, 
if necessary, to the end that the Attorney General may be requested 
to give the district attorney any required instructions in the matter. 
C. 6647, Jan., 1899. 

I G 3 b (2) (a) [3] [d\. An officer of the Army, by direction of the 
commanding officer of a transport, raided a crap game that was being 
conducted on board the transport. The men who had participated 
in the game disappeared and he was not able to identify any of the 
participants. He found $15.65 exposed. He took possession of it, 
and on the question as to the proper disposition of the money, held 
that this officer acquired title to tliis money as the finder, wliich was 
valid against all the world except the true owner. He could retain 
the money subject to claim by the true owner or he could turn it over 
to the transport quartermaster. The latter, upon the receipt of such 
money, should take it up as "found on U. S. Army transport," and 
turn it into the Treasury as miscellaneous receipts. C. 13965, Jan. 
14, 1903. 

I G 3 b (2) (a) [3] [e]. The act of April 28, 1904 (33 Stat. 518), 
which provides for the transportation ''by sea" of supphes for the 
Army and Navy in American vessels appHes to the transportation of 
mihtary supphes by sea in the Phihppine Islands. C. 16367, Sept. 1, 
1904. 

I G 3 b (2) (a) [3] [/]. Held under the act of June 12, 1906 (34 Stat. 
240) , which provides for the transportation by sea of the f amihes and 
employees of officers and men of the Army, Navy, and Marine Corps, 
on Army transports, that a person who has not yet acquired the above 
status is not entitled to transportation. C. 20304, Aug. 29, 1906. _ 

I G 3 b (2) (a) [3] [g]. The principle of exterritoriahty is one which 
is apphed to vessels of war in the territorial waters of a foreign power. 
It is oy no means well established that 'public vessels as distinguished 
from public armed vessels are entitled to the privilege, and the rule 
itself does not control in the relations between a consul general of the 
United States (or a consul) in a foreign port and the master of an 
Army transport in the employ of the Quartermaster General. G. 
19051, Jan. 12, 1905. 

I G 3 b (2) (a) [3] [h]. _ Held that section 1765 R. S., forbiddmg any 
officer in the public service or any other person whose salary, pay, or 
emoluments are fixed by law or regulations, to receive any additional 
pay, extra allowances, or compensation in any form whatever unless 



92 ARMY I G 3 b (2) (a) [3] r^l. 

the same is authorized by law, has no application to an increase in 
the money allowance on a transport due to the excessive cost of beef 
in Alaska, and does not require the cost of subsistence of passengers 
on a transport to be raised, due to the high cost of supplies in Alaska. 
C. 17859, Apr. 19, 1905. 

I G 8 b (2) (a) [3] [%]. The act of April 28, 1904, provides that 
"Vessels of the United States, or belonging to the United States, and 
no others, shall be employed in the transportation by sea of coal, 
provisions, fodder, or supplies of any description, purchased pursuant 
to law, for the use of the Army or Navy unless the President shall find 
that the rates of freight charges by said vessels are excessive and 
unreasonable, in wliicn case contracts shall be made under the law 
as it now exists: Provided, That no greater charges be made by such 
vessels for transportation of articles for the use of the said Army and 
Navy than are made by such vessels for transportation of like goods 
for private parties or companies." (33 Stat. 518.) Held that tliis 
enactment applies to a case where there are ships of American register 
which are engaged in carrying trade. If there are none, there is 
nothing to which the provisions of the statute can apply, and the trans- 

Eortation services would then be procured in the method prescribed 
y existing law. Held further that the same case would exist at a 
port where there are vessels of American register, but their owners 
decline to allow them to engage in the carrying trade. Where there 
are vessels of American register, therefore, it would seem to be neces- 
sary, in order to give operation to the statute, to give them an oppor- 
tunity to engage in the carrying trade by advertisement for bids. 
If bids are received, it can easily be ascertained whether they are 
"excessive and unreasonable or not," and their character in that 
regard should be reported to the department, with a view to the sub- 
mission of the case to the President for an exercise of the discretion 
vested in him by the act of April 28, 1904. C. 20928, Jan. 15, 1907. 
Held further that if no bids were received from owners of American 
ships, recourse could be had to foreign ships. In the same way if a 
ship having an American register bids for one trip in six months, and 
the Government is obliged to ship monthly, or more frecpiently, then 
the American bid, if reasonable, would be accepted as to the one trip, 
and foreign bids would be received as to the other shipments, as the 
bid for one trip amounts, in fact, to notice that no vessels of American 
register are offered for the balance of the service. C. 20928, Jan. 19, 
1907, Aug. 6, 1907. 

I G 3 b (2) («) [4]. Held that when an officer in the Philippine 
Islands is ordered to travel in the military service, and the only trans- 
portation along a portion of the journey is by automobile, a trans- 
portation request may be furnished by the Quartermaster's Depart- 
ment, good on the automobile line.^ C. 257 Ifl , Mar. 16, 1911. 

I G 3 b (2) (6). On a question as to whether a quartermaster 
could buy a horse for the Government from an officer of the Army, 
held that unless such purchase received the approval of the Secretary 
of War it would not be vahd.^ C. 15996, Mar. 7, 1904. 

• See Mms. Dec. of the Comptroller of the Treasury, dated Apr. 13, 1911, approving 
this opinion. 
■'' See G. O. No. 54. 1910, War Department, p. 18. 



ARMY I G 3 b (2) (c). 93 

I G 3 b (2) (c) . The sale of stores to officers on the retired Hst is now 
authorized by Executive regulation in some cases — notably that of 
subsistence stores. As such stores, with the exception of fuel, are 
sold at the cost price, and as such sales are authorized to be made to 
'^ officers of the Army" and are not restricted, by statute, to officers 
on the active Hst, there is no legal objection to the sale of forage to 
retired officers at cost price, under such restrictions, as to amount 
and conditions, as may be imposed by the Secretary of War. For 
that reason it is unnecessary to ask legislative sanction for the sale 
of forage to retired officers, a transaction wliich stands on precisely 
the same footing, in respect to legality, as the sale of subsistence to 
the same class of officers.^ C. 19126, Apr. 12, 1906. 

I G 3 b (3) {a) [1]. Where subsistence stores were sold by a post 
commissary of subsistence to a mess of three officers of the post, and 
charged to the mess as such, Jield, that such mess was not in the na- 
ture of a commercial partnership in which each member was bound 
for the joint indebteclness, but was simply an association, for pur- 
poses of convenience and economy, of three individuals, each of 
whom was bound to the United States only for his proportion — one- 
tliird — of the account. And held that a member who had paid his 
proportion to one of the other members who acted as caterer but who 
hacl deceased without paying over tliis amount to the commissary, 
remained liable for such proportion to the United States. R. 41, 
155, Mar., 1878. 

I G 3 b (3) (a) [2]. The issue of stores for food beyond amounts 
fixed in established rations, held not lawful. C. 6728, July 21, 1899. 

I G 3 b (3) (a) [31. Where employees of the Alaskan telegraph lines, 
receiving over $60 per month, were issued rations because no other 
method of subsistence was practicable, such issue being incorporated 
in their contracts of employment, held to be a waiver of the require- 
ments of par. 1219, Army Regulations, 1904 ed. (1224 ed. 1910), 
which it was la\vful for the Secretary of War to make. C. 19366, Mar. 
13, 1906 and June 22, 1907. 

I G 3 b (3) {a) [4]. Wliere other subsistence can not be obtained at 
places in Alaska, held that female nurses, and enlisted patients in 
hospital may be issued rations in kind. C. 20184, Aug. 6, 1906. 

I G 3 b (4) (a). Held that section 1167, R. S., does not direct or 
authorize the Chief of Ordnance, subject to the approval of the Sec- 
retary of War, to draw up and enforce in his department a system of 
rules and regulations for the inspection of ordnance property with a 
view to its condemnation and safe or destruction. V. 63, July, 1894-. 

I G 3 b (4) (6) . A line officer, detailed for service in the Ordnance 
Department, under the act of June 25, 1906 (34 Stat. 455), is re- 
quired to take the examination for promotion in the line wliich is 
pro\dded for in section 3 of the act of October 1, 1890 (26 Stat. 562). 
In the application the principle of equivalency, as embodied in Gen- 
eral Order 220, War Department, ol October 31, 1907, held that he 
may lawfully be excused from examination in those branches in 
which he has passed a successful examination for detail in the Ord- 
nance Department. C. 22432, Dec. 2, 1907. 

I G 3 b (4) (c). The verification of capacity and fitness for a second 
detail in the Ordnance Department is, in the act of June 25, 1906, 

1 See G. O. 141, War Department, 1906. 



94 ARMY I G 3 b (4) {d). 

made to depend upon the recommendation of a board of ordnance 
officers, but whatever may be the scope and character of that mquiry, 
it is not an ''examination" in the sense in which that term is used in 
the acts regulating the advancement of officers in the mihtary estab- 
Hshment. Held, that the operation of General Order 220, War 
Department, 1907, is not such as to exempt an ordnance oflBicer from 
the operation of existing orders regulating the examination for pro- 
motion of officers in his branch of the line of the Army. C. 22432, 
Dec. 2, 1907. 

I G 3 b (4) {d). Held that section 1765, R. S., does not prohibit the 
payment of compensation to an ordnance sergeant for work as "time 
keeper" under the United States Engineer Department, such employ- 
ment having no affinity or connection with the line of his official duty* 
as ordnance sergeant and not interfering in any way with the same. 
C. 2570, Sept., 1896. 

I G 3 c (1). The duties of the Engineer Department in respect to 
the construction, maintenance, and operation of canals and works 
of river and harbor improvement, together with their work in con- 
nection with fortifications and seacoast defenses, are carried on 
under the direction of the Secretary of War and the Chief of Engi- 
neers, whose authority in respect thereto is measured by the enact- 
ments of Congress which prescribe their duties and responsibilities 
in that regard. It is only when the station of an officer is changed, 
or a leave of absence granted, or a question of retirement is pre- 
sented, that The Adjutant General becomes charged with the per- 
formance of certain duties respecting the record sides of the several 
acts noted.2 C. 25730, Oct. 30,1909. 

1 G 3 d (1). Medical practice by officers of the Medical Corps 
of the Army, outside of mihtary posts, should conform to the laws of 
the State, but this is subject to the qualification that medical treat- 
ment of members of the Army on the active list, being an instru- 
mentality of the United States Government, can not be controlled by 
State legislation, and may be furnished wherever the soldier may 
be stationed. Enlisted men on the retired list are allowed medical 
attendance at the stations of medical officers only. Medical officers 
on duty are required to attend officers and enlisted men and when 
practicable their families. Medical officers in their attendance upon 
the famihes of officers and enhsted men, outside of military posts, 
would have to comply with the State laws; otherwise such attend- 
ance would not be "practicable." So in the treatment of civifians 
not living on mihtary reservations, the laws of the State would have 
to be comphed with. G. 3270, June, 1899;^ 20395, Sept. 18, 1906. 

I G 3 d (2) {a). Held, in respect to the jurisdiction vested in the 
board of review by the act of April 23, 1908 (35 Stat. 66), that 
as the law expressly provides that "a second examination shall not 
be allowed," it would seem that this language would negative the 
idea that a board of review could conduct an independent inquiry 
into any views or aspects of the fitness of the officer for advance- 
ment. Its jurisdiction would seem to be restricted by the statute 
to the record of the original examining board, including all the 

» See Converse v. U. S., 21 Howard, 463; U. S. v. Brindle, 110 U. S., 688; Meigs v 
U. S., 19 Ct. Cls., 497. 

2 Under the act of Feb. 2, 1901 (31 Stat. 754), the enlisted force of the Corps of 
Engineers, and the Engineer officers on duty with them belong to the line of the Army. 



AEMY I G 3 d (2) (6). 95 

testimony, documentary and otherwise, which was submitted to 
that board for consideration in connection with the fitness of the 
officer for advancement. Any taking of new testimony would, in 
the opinion of the office, be in the nature of a second examination 
and, as such, would be prohibited by the clause of legislation above 
cited. C. 23135 June 12, 1908. 

I G 3 d (2) (6). The act of April 23, 1908 (35 Stat. 66), makes 
specific provision for the review or the proceedings of boards charged 
with the original examination of officers of the Medical Corps for 
promotion. The Secretary of War is charged with the duty of 
appointing the board, but is not required, either expressly or by 
necessary implication, to approve or disapprove its findings, which 
become operative from the date of publication. 

The action of the department upon the findings of the board of 
review is ministerial m character, and consists in executing the 
discharge of the officer and in the advancement of such officers of 
inferior rank as become entitled to promotion in consequence of 
the findings, and in announcing the result of the action to the Army 
in the usual manner. G. 23135, June 24, 1908. 

I G 3 d (3) {a) . The act reorganizing the Medical Corps provides 
that "In emergencies the Secretary of War maj^ order officers of 
the Medical Reserve Corps to active duty" (Sec. 8, act of Apr. 23, 
1908—35 Stat., 68). 

Held, that the term "emergency" is nowhere made the subject 
of rigorous and exact definition. Webster defines the term as: 
"An unforeseen occasion or combination of circumstances which 
calls for immediate action or remedy; pressing necessity; exigency." 
The term is defined in the Century Dictionary as: "A sudden or 
unexpected happening; an unforeseen occurrence or condition." 
In some acts of legislation affecting the executive departments and 
the military establishment the term "extraordinary emergency" is 
used, without adding to the force of the term or extending its legal 
meaning. Where a contract surgeon is the only medical officer at 
a post or station and a vacancy is caused, due to liis death, resig- 
nation or cUscharge from the further operation of liis contract of 
employment, it would seem that an emergency has arisen, witliin 
the meaning of the clause above cited, of such a character as to 
warrant an exercise of the discretionary judgment which is provided 
for in the statute; and tliis would be equally true if the vacancy 
were caused by the discharge of the contract surgeon serving at a 
place where the vacancy occurred, and where it is proposed to order 
an officer of the Medical Reserve Corps into active service. Such 
a view would also be properly taken as to the operation of the statute 
in a case where the services of a contract surgeon at a post or hos- 
pital are necessary, even if there be other medical officers at such 
post or hospital; although such an emergency would be one which 
should be distinguished in some of its aspects from that first above 
described. In any event, the law, charges the Surgeon General with 
the duty of determining whether an emergency exists, and his conclu- 
sion in that regard, when approved by the Secretary of War, will 
be decisive in the operation of the statute.^ C. 23135, June 26, J 908. 

» Sheean v. City of New York (75 N. Y. Supp., 802-803); People v. Lee Wuh (71 
Cal., 80-89 Pac. Rep., 851). 



96 AEMY I G 3 d (3) (h). 

I G 3 d (3) (b). Held, in the operation of section 7 of the act of 
April 23, 1908 (35 Stat., 66), that commissions should issue to 
appointees in the Medical Reserve Corps, they being so drawn as 
to evidence an exercise of the appointing power and, as the Medical 
Reserve Corps is a part of the mihtary estabhshment, the commission 
should, as far as possible, be similar in form to those issued to officers 
of the Medical Corps, subject, of course, to such changes as are 
required to give effect to that clause of the statute which restricts 
the operation of the commission to the period during which the 
officer may be employed in the active service of the United States. 
At all other times these commissions are dormant and vest no 
authority in and impose no duties upon the persons who hold them. 
a 23135, May 8, 1908. 

I G 3 d (3) (c) [11. The object of the creation of the Medical Reserve 
Corps is stated to be " for the purpose of securing a reserve corps of med- 
ical officers available for military service." Under this statement of 
the intent of the law it would seem clear that the idea is to secure the 
cooperation and general assistance, moral if not actual, of proper 
graduates in medicine. It would seem proper, therefore, to take 
the view that all privileges, not involving what I may call official 
rights, should be extended to officers of the Medical Reserve Corps 
if the Government is to be consistent in the matter, regardless of 
whether they are actually in active service or not. C. 23135, 
Aug. 1, 1908. As a matter of law, clearly only those in active service 
are entitled to the privilege of officers of the Army, but under the 
general principle involved, the entire Medical Reserve Corps should 
receive all consideration and privileges which their interest in the 
service warrants, so long as those privileges are not in conflict with 
existing law. C. 23135, Aug. 1, 1908. 

I G 3 d (3) (c) [2]. The mere acceptance of office in the Medical 
Reserve Corps, not coupled with an assignment to duty, creates no 
rights in respect to pay or allowances or the indulgence of leave of 
absence. Should an officer be assigned to duty under his appoint- 
ment, he would be placed in the same position in respect to leaves 
of absence as other commissioned officers of the Army, and the 
statutes regulating the pay status of officers on cumulative leave 
would apply to him in the same way that they apply to other com- 
missioned officers of the Army. G. 23135, June 29, 1908. 

I G 3 d (3) (c) [3]. Held that the President can relieve an officer of 
the Medical Reserve Corps from duty under an assignment when his 
services are no longer necessary, and thus render his appointment 
dormant. He may also honorably discharge an officer of the Medical 
Reserve Corps when his services are no longer needed. Officers of 
this corps are subject to the Articles of War and the laws, regulations, 
and orders for the government of the Regular Army during the period 
of their service; and when an ofiicer of the Medical Reserve Corps 
commits a criminal offense he is subject to the same disciplinary con- 
trol that is appfied to other officers of the Armr. C. 23135, Dec. 
19, 1908. 

I G 3 d (3) (c) [4]. Section 7 of the act of Aprfi 23, 1908 (35 Stat. 
68) , provides for the securing of a reserve corps of medical officers to 
be known as the Medical Reserve Corps, the members of which shall 
be commissioned, and when called into active duty, shall have all 
the authority, rights, and privileges of commissioned officers of like 



^ ARMY 1 G 3 d (4) (a). 97 

giaclc ill the Medical Corps of the United States Army, except pro- 
motion, during the period of such active service.- Held that officers 
of the Medical Reserve Corps while on active service are entitled to 
transportation, etc., of private horses when their duty requires them 
to be mounted, in accordance with the law and regulations which 
govern the furnishing of transportation under such circumstances to 
officers of the permanent establishment. 0. 23135, Dec. 16, 1911. 

I G 3 d (4) {a). The clause of section 18 of the act of February 2. 
1901 (31 Statr. 753), which authorizes the employment of contract 
surgeons, is not repealed, either expressly or by necessary implica- 
tion, in the act of April 23, 1908 (35 Stat. 67), which, save that it 
confers ehgibility for their appointment to the Medical Reserve 
Corps, is suent in respect to the status or employment of contract 
surgeons. They formed no part of the Medical Department in the 
act of February 2, 1901, and they form no part of the same depart- 
ment as reconstituted in the act of April 23, 1908. C. 23135, May 
m, 1908; 10566, Nov. 5, 1909. 

I G 3 d (4) (h). As the services of acting assistant or contract 
.-surgeons are obtained by contract and not in the operation of the 
app)ointing power, held, that in view of the contractual character of 
their employment, an oath of office is not required as a condition pre- 
•cedent to the receipt of compensation under their contractual under- 
.taking with the United States. C. 23135, Dec. 17, 1308. 

I G 3 d (4) (c). A "contract" or ''acting assistant" surgeon is not 
a military officer and has no military rank.^ 0. 10566, Nov. 5, 1909. 
He is amenable to the military jurisdiction when employed with the 
Army in the field in time of war under the sixty-third article of war, 
but is in fact no part of the military establishment, being merely a civil- 
ian under employment by the United States by contract for his personal 
services as a medical attendant to the troops. R. 9, 678, Oct., 1864; 26, 
18, Sept., 1867; 28, 239, Nov., 1868: 34, 207, Apr., 1873: 49, 246. 
Not an officer within the meaning of the act of May 3, 1885 (23 Stat., 
350) ; July, 1885: 52, 304, June, 1887: P. 52, 4O4, Mar., 1892; 53, 167, 
Apr., 1892; 65, 226, June, 1894: C. 11128, Mar., 1895. HeU that he 
should take the oath prescribed in section 1 757 R. S. G. 23135, Dec. 17, 
1908. ZTeZf^thathehas the privilege of buying fuel and forage from the 
quartermaster's department, as provided by the Army Regulations, 
as this privilege is not an allowance or an emolument. G. 4988, 
Sept. 18, 1898; 12965, June 2, 1902. Held that he may purchase nec- 
essary articles of equipment for field service. G. 20861 , Jan. 3, 1907. 
Held that he may sign surgeons' certificates of disability {G. 15308, 
Sept. 26, 1903) and may prepare and sign final statements (C. 11720, 
Dec. 17, 1901). A contract surgeon may act as post treasurer. G. 
8974, Sept. 19, 1900. Held that a contract surgeon has the power to 
effectually supervise his subordinates in a field hospital, as well as 
in a post hospital. G. 16600, July 13, 1904. Held that he is not 
entitled to admission to the Government Hospital for the Insane. 
G. 17217, Sept. 19, 1906. HeU that he is not eligible for retirement.^ 
G. 16672, June 28, 1909. Held that a contract surgeon can not legally 

1 26 Ct. Cls.. 302. 306; Dig. Dec. Comp., Vol, III, sees, 929, 932; IV, idem, 629. 631- 
27 Op. Atty. Gen., 468. 

2 27 0p. Atty. Gen., 468. 

93673°— 17 7 



98 ARMY I G 3 d (4) {d). 

be compelled to remain in the service against his consent after the 
expiration of the term of his contract. C. 8618, July, 1900. 

I G 3 d (4) {d). Section 18 of the general reorganization act of 
February 2, 1901 (31 Stat. 753), authorizes the employment of con- 
tract dental surgeons. Held that they are not commissioned officers 
and are not a part of the Army. They are civilians and their services 
are obtained in the operation of contracts of employment. C. 10566, 
Nov. 5, 1909. 

I G 3 d (5) (a). The strength of the Hospital Corps was not 
increased in the operation of the act of May 11, 1908 (35 Stat. Ill), 
and its strength can only be increased by an act of affirmative dis- 
cretion on the part of the Secretary of War under the authority to 
that end which is vested in him by the act of March 1, 1887 (24 Stat. 
435). C. 2S288, Apr. 15, 1909. 

I G 3 d (5) (&) . Sergeants of the first class of the Hospital Corps can 
only be detailed as mess sergeants under the special authority of the 
Surgeon General. C. 23695, Oct. 12, 1909. 

I G 3 d (6) (a) [1]. Held., that the Nurse Corps (female) is an integral 
part of the United States Army, notwithstanding the fact that the 
members thereof are neither commissioned as officers nor enlisted for 
a term of years. Held, therefore, for the purposes of civil-service 
administration that the Army Nurse Corps is in the military service, 
as distinguished fi-om the executive civil service, and consequently 
is not subject to the civil-service acts and rules or required to be classi- 
fied thereunder. C. 10566, Oct. 13, 1909. 

I G 3 d (6) (a) [2]. The 30 days' leave of absence to female nurses, 
provided for in section 19, act of February 2, 1901 (31 Stat. 753), 
held, to be not cumulative. C. 10160, May 29, 1902. 

I G 3 d (7) (a) [11. Under the present regulations for the govern- 
ment of the Army and Navy General Hospital at Hot Springs, Ark., 
civil employees of the Government are not eligible to admission. 
P. 58, 452, Mar., 1893. 

I G 3 d (7) {a) [2]. Held, that under the regulations for the govern- 
ment of the General Hospital at Hot Springs, Ark., (G. O. 60, A. G. O., 
1892, as amended by G. O. 40, A. G. O., 1893), discharged enlisted 
men of the Navy are not entitled during the three months within 
which they may reenhst under the act of February 8, 1889 (25 Stat. 
657), to admission to the hospital. C. 2069, Feb., 1896. 

I G 3 d (8) {a). Held that officers' servants, being a part of the offi- 
cer's household, were entitled equitably to admission to post hospitals, 
and should not be regarded as a class subject to par. 1630 Army Regu- 
lations of 1889, relating to the admission to such hospitals of '^ civilians 
not in public service." They should be treated with the same liber- 
ality in this respect as is shown in the furnishing of subsistence sup- 
plies, which an officer is entitled to purchase not only for his own use 
but for that of his household.^ P. 87, IfiO, Jan., 1890. 

I G 3 d (8) (&) . In the case of the death of a soldier at a post hospital 
who leaves an estate without heirs and makes no disposition 01 the 
estate by will, held that the estate escheats to the United States. 
Held further that the post surgeon should proceed as indicated in the 
Army Regulations and deposit the money (as that was the estate in 

^ A stricter view is expressed in Circ. No. 1, A. G. O., 1890. 



ARMY I G 3 d (S) (c) [l]. 99 

tliis case) with the paymaster to the credit of the United States, taking 
receipts in duphcate, etc. C. 20272, Aug. 24, 1906. 

I G 3 d (8) (c) [1]. The act of March 2, 1901 (31 Stat. 895, 905), 
appropriated money for a special diet for enlisted patients in Army 
hospitals who were too sick to be subsisted on the Army rations. Held 
that a reasonable interpretation of this act would permit the purchase 
for the use of the sick as articles of special diet, ginger ale and a charged 
water (Tansan). C. 12094, Feb. 27, 1902. 

I G 3 d (8) (d). The act of June 12, 1906 (34 Stat. 256), provides 
that "hereafter all moneys arising from dispositions of serviceable 
medical and hospital supplies authorized by law and regulation shall 
constitute one fund on the books of the Treasury Department, which 
shall be available to replace medical and hospital supplies throughout 
the fiscal year in which the dispositions were effected and throughout 
the following fiscal year." Held that funds paid to the Medical De- 
partment to reimburse it for the cost of a safe are available to replace 
medical and hospital supplies in the manner described in the above 
cited act. C. 20993, Jan. 26, 1907. 

II A. Under Article IV, section 4, of the Constitution, the Army 
may be employed to protect a State from ''invasion" or "domestic 
violence," only by the order of the President, made "on apphcation 
of the legislature, or of the executive when the legislature can not be 
convened."^ A military commander, of whatever rank or command, 
can have no authority, except by the order thus made of the President 
to furnish troops to a governor or other functionary of a State, to aid 
him in making arrests or establishing law and order. R. 30, 125, Mar., 
1870: 41, 206, Apr., 1878; C. 2063, Feb. 11, 1896; 3119 (Alaska) Apr. 
21, May 18, 1909, Aug. 19 and Sept. 7, 1910; 8200, May 10, 1900; 
8570, Sept 10, 1902; 17164, Nov. 15,' 1904; 19341, Mar. 10, 1906; 
20104, July 20, 1906: 22360, Nov. I4, 1907. 

II A 1. The proviso of the Constitution — "when the legislature 
can not be convened," may be said to mean when it is not in session, 
or can not, by the State law, be assembled forthwith or in time to 
provide for the emergency. R. 30, 172, Mar., 1870; C. 5557, Dec. 20, 
1898: 8383, May 26, 1900; 22474, Dec. 10, 1907. 

II B. Under act of May 17, 1884 (23 Stat. 24), a civil government, 
consisting of an executive and a judicial branch, was established for 
Alaska, and the general laws of Oregon were made the laws of the 
Territory. On the question whether the Army could be used to en- 
force the law in that Territory, held, that if the United States marshal 
should ask for military assistance to enable him to execute a process 
which he is unlawfully prevented from executing, it could legally be 
given him by the President. The act of June 18, 1878 (20 Stat. 152), 
does not preclude such action, because, as held by the United States 
Supreme Court, the President has by virtue of his constitutional 
powers to take care that the laws are faithfully executed and as 
commander in chief of the Army the power to use force when neces- 
sary in the execution of the laws of the United States.^ C. 3119, Apr., 
1897. The use of troops in Alaska continues to be lawful in the sup- 

'For a full discussion of this subject and citation of authorities, see "The Use of the 
Army in Aid of the Civil Power," by G. N. Lieber, Judge Advocate General, U. S. 
Army, War Dept. Doc. No. 63. 

^See In re Neagle, 135 U. S., 1, and authorities cited. 



100 ARMY II C. 

port of civil order, as the Territory is expressly exempted from the 
operation of the act of June 18, 1878 (20 Stat. 152), by a requirement 
of the act of March 3, 1899 (30 Stat. 1324). C. 3388, July 26, 1897; 
3119, Apr. 21, May 18, 1909, Aug. 19 and Sept. 10, 1910. 

II C. There is not in the treaties with the Indians of the Indian 
Territory, or sections 2147, 2150, 2152, R. S., any express authority 
vested in the President to use the Army in such Territory for the 
apprehension of local robbers or thieves, etc., or for the protection of 
corporations or individuals from such robbers or other outlaws, except 
in so far as such offenders may be persons who are in, or are attempting 
to enter the Indian country "contrary to law," or are Indians charged 
with crime. (Sec. 2152, R, S.) In these cases they could be appre- 
hended by the military forces, but only by virtue of and conformably 
to the statutes cited, and not (unless they be Indians) because they 
are train robbers or other offenders against the local peace or laws. 
a 542, Oct., 1894; 5354, Nov., 1898. 

Held, that in the execution of process of arrest under the act of 
March 3, 1885 (23 Stat, 362), (rendering Indians amenable to the 
criminal laws of the Territories) , the military may, by direction of the 
President, legally be employed to aid the civil officials in such arrests, 
such employment being expressly authorized by section 2152, R. S. 
R. 53, 272, Apr., 1887. 

Notwithstanding the legislation of June 18, 1878 (20 Stat. 152), the 
President was authorized to employ the military to arrest and prevent 
persons engaging in introducing liquor into the Indian country con- 
trary to law, as also to arrest persons being otherwise in the Indian 
country in violation of law,^ or to make the arrest therein of Indians 
charged with the commission of crime; such employment being ex- 
pressly authorized by sections 2150 and 2152, R. S. B. 53, 112, Dec, 
1879. 

That the President was authorized by section 2150, R. S., to remove 
by military force, after a reasonable notice to quit, certain persons 
commorant upon an Indian reservation contrary to the terms of a treaty 
between the IJnited States and the tribe occupying the reservation, 
and who therefore were there "in violation of law" in the sense of that 
section.2 R. 37, 266, Jan., 1876. 

II C 1. Held to be at least doubtful whether the authority of the 
President as Commander in Chief could legally be extended to the 
ordering of an officer of the Army upon the purely civil duty of 
instructing Indian youth, unless indeed such instruction was to be 
given by him as a professor of a college, &c., under section 1225, R 
S. Special duties of an exclusively civil character, where intended 
to be anything more than merely temporary, have in general been 
devolved upon military officers only by the authority of express legis- 
lation — as, for example, in the cases provided for by sections 1225, 

^ But note that, in view of the provisions of section 2151, E.. S. , an officer of the Army 
who detains a person arrested under section 2150 longer than five days before "convey- 
ing him to the civil authority," or subjects him when in arrest to unreasonably harsh 
treatment, renders himself liable to an action in damages for false imprisonment. In 
re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 id., 17. 

^See 14 Op. Atty. Gen., 451; 20 id., 245; and note the proclamation of the President 
published in G. O. 16, Headquarters of Army, 1880, relating to the intrusion of un- 
authorized persons upon the Indian Territory" and declaring that the Army would 
be employed to effectuate their removal if necessary. 



ARMY TT D. 101 

2062, 2190, and 4687, R. S., in which authority has been given by 
Congress for the employment of officers of the Army as professors, 
&c., of colleges, Indian agents, and assistants in taking the census^ 
and on the coast survey. So, advised, that, if thought expedient to 
devolve upon military officers the function of the instruction of Indian 
vouth, specific authority be obtained from Congress for the purpose.^ 
R. J^l, 545, Ajwil, 1879; C. 16134, Apr. 11, 1904; 20251, Apr. 21, 1906. 

The Industrial Training School for the Chilocco Indians not being 
established "at a vacant military post or barracks set aside for its 
use by the Secretary of War," held th.?it the Secretary would not be 
authorized to detail an officer of the Army for duty there "in connec- 
tion with Indian education," under the act of July 31, 1882 (22 Stat. 
181). R. 49, 320, Sept., 1885. 

II D. In aU cases of civil disorders or domestic violence it is the 
duty of the Army to preserve an attitude of inaction till ordered to 
act by the President, oy the authority of the Constitution or of sec- 
tion 2150, 5297, or 5298, R. S., or other public statute. An officer 
or soldier may indeed interfere to arrest a person in the act of com- 
mitting a crime or to prevent a breach of the peace in his presence, 
but this he does as a citizen and not in his military capacity. (See 
twenty-fourth article of war.) Any combined effort by the military, as 
such, to make arrests or otherwise prevent breaches of the peace or 
violations of law in civil cases, except by the order of the President, 
must necessarily be illegal. In a case of civil disturbance in violation 
of the laws of a State, a military commander can not volunteer to 
intervene with his command without incurring a personal responsibil- 
ity for his acts. In the absence of the requisite orders he may not 
even march or array his command for the purpose of exerting a moral 
effect or an effect in terrorem; such a demonstration indeed could 
only compromise the authority of the United States, whUe insulting 
the sovereignty of the State. '^ R. 30, 125, Mar., 1870; 32, 24I, Jan., 
1872; 36, 450, May, 1875; 4I, 206, Apr., 1878. 

II E. A military force employed according to Article IV, section 4, 
of the Constitution, is to remain under the direction and orders of 
the President as Commander in Chief and his military subordinates: 
It can not be placed under the direct orders or exclusive disposition 
of the governor 6f the State. R. 30, 172, March 1870; C. 5354, Nov. 
19, 1898; 8383, May, 1900; 20570, Oct. 19, 1906. 

II F. Though dicta are to be met with in the authorities looking 
to such a service as legal, it is clear that the military forces of the 
United States can not as such be permitted in any event to serve upon 
the posse comitatus of a sheriff, or other executive official whose func- 
tion it is to execute the locallaws of a State or Territory. R. 36, 450, 
May, 1875; 39, 458, 577, Mar. and June, 1878; C. 11928, Jan. 21, 
1902; 16165, Apr. 8, 1904; 17508, Feb. 15, 1905; 20104, July 20, 
1906; 20570, Oct. 30, 1906; 22360, Nov. I4, 1907. 

II F 1. It is provided in section 15 of the act of June 18, 1878 
(20 Stat. 152), that — "from and after the passage of this act it 

* See G. 0. 39, Headquarters of Army, 1880. 

^ Congress was accordingly resorted to for authority in this instance, and by the act 
of June 23, 1879 (21 Stat. 35), the Secretary of War was specially empowered "to detail 
an officer of the Army not above the rank of captain for special duty with reference to 
Indian education." A detail was made accordingly — by S. O. 194, Headquarters of 
Army, Aug. 23, 1879, 



102 ARMY II G 1 a. 

shall not be lawful to employ any part of the Army of the United States 
as a posse coinitatus, or otherwise, for the purpose of executing the 
laws, except in such cases and under such circumstances as such 
employment of said force may be expressly authorized by the Consti- 
tution or by act of Congress." ^ In view of this legislation, held as 
f oUows : ' 

That whenever a marshal or deputy marshal was prevented from 
making due service of judicial process, for the arrest of persons or 
otherwise, by the forcible resistance or opposition of an unlawful com- 
bination or assemblage or persons, the President was expressly author- 
ized by section 5298, R. S.,^ to employ such part of the Army as he 
might deem necessary to secure the due service of such process and 
execute the laws. R. 39, 665, Sept, 1878; 43, 80, Nov., 1879 and 
324, May, 1880. 

II G 1 a. The Philippine Scouts are a part of the Military Estab- 
lishment. (Sec. 36, act of Feb. 2, 1901 ; 31 Stat. 751.) 

Prior to the legislation in aid of the constabulary laws, the Philip- 
pine Scouts were on precisely the same footing, in respect to absti- 
nence from interference in civil affairs, as other organizations of the 
Regular Army which were stationed in the Philippine Islands. If a 
situation arose indicating a necessity for the employment of miUtary 
force in the suppression of disorder a request to that end was made 
by the civil governor upon the militaiy commander, under the Presi- 
dent's instructions to the PhiUppine Commission of April 7, 1900, 
which were ratified and confirmed by the act of July 1, 1902 (32 
Stat. 691), and the troops were employed, under the direction of 
their military superiors, in the restoration of order. The extent of 
such use being determined as a result of conference between the chief 
civil and military authorities in the islands. 

The operation ot the act of January 30, 1903, has been to vest in 
certain officers of the Phihppine Constabulary the same power of 
military command over companies of the Philippine Scouts, which 

^ As to what provisions of the Constitution and acts of Congress are excepted, see 
paragraphs 486-491, A. R. of 1895 (493-498 of 1910). 

As United States marshals are not expressly authorized by any act of Congress to 
summon the military to serve on a posse comitatiis (tliis being authorized only indirectly 
and impliedly by the provision of the act of Sept. 24, 1789, incorporated i n sec. 787 of 
the Revised Statutes, 6 Op. Atty. Gen., 466, 471; letter of Atty. Gen. Evarts to the 
U. S. marshal for the northern district of Florida, Atty. Gen.'s ofhce, Aug. 20, 1868; 
general instructions to U. S. marshals from Atty. Gen. Taft, published in G. 0. 
96, Headquarters of Army, 1876), the Army can not, imder the existing law, legally 
act on the posse comitatus of a marshal or deputy marshal of the United States. See 
16 Op. Atty. Gen., 162 (Oct. 10, 1878); 17 id., 242, 333; 19 id., 293; 21 id., 72. 

While the object of the serving of United States troops on the posse of a United States 
marshal (where legally authorized so to serve) is simply to assist and cooperate with 
him in the enforcement of the process committed to him for execution, and the com- 
mander of the detachment is to consider himself as acting in subordination to the civil 
officer (see Atty. Gen. Evarts's letter of instructions cited, supra), the troops employed 
are to be regarded as under the command of their military superiors, and directly 
responsible to the latter as on other occasions of the performance of military duty ana 
service. See G. O. 96, A. G. O., 1876; also par. 490, A. R. of 1895 (497 of 1910). 

2 See sec. 5300, R. S., as to proclamations by the President whenever in his judg 
ment it becomes necessary to use the military forces under sees. 5297, 5298, and 5299 
or other sections of Title LXIX, R. S. As instances of such proclamations see procla 
mation of Oct. 7, 1878, 20 Stat., 806; do. of July 8 and 9, 1894, 28 Stat., 1249, 1250 
See also the President's (Cleveland) reply to Gov. Altgeld, July 5, 1894 — published 
in "The Use of the Army in Aid of the Civil Power" (Lieber), War Dept. Doc. No. 63 



ARMY 11 G 2 a. 103 

arc ordered to assist the constabulary in the maintenance of order, 
as is habitually exercised by the oflicers of the line of the Army over 
the commands to which they have been assigned by the President, or 
by military superiors deriving their authority from the President. 
Tne control of the chief of the Phihppine Constabulary over his 
subordinates in the service is derived from the legislation of the 
Philippine Commission and from the orders of the civil governor, 
conveyed to such chief either directly or through the secretary of 
commerce and police; and his authority over such companies of 
Philippine Scouts as are employed, in support of the constabulary, in 
the maintenance of order, is a strictly military command, and is 
derived from the act of Januaiy 30, 1903, which obviously has appli- 
cation to cases in which the disturbance is so limited and localized 
that order can be restored by the employment of the civil agencies 
provided for that purpose with the assistance of a detachment of 
Phihppine Scouts ; in other words, the extent and amount of the dis- 
order IS known to the civil governor, who has ground for the belief 
that the constabulary force, with the assistance of one or more com- 
panies of scouts, can restore order or secure the execution of the laws 
in the disturbed locahty without formally calling upon the militaiy 
commander for the employment of troops in the method prescribed 
in the President's proclamation of July 3, 1902. C. 17608, Feb. 15, 
1905. 

II G 2 a. The officers and men of the Regular Army have, under 
ordinary circumstances, no responsibilities in connection with the 
maintenance of civil order in the Philippine Islands, or elsewhere, 
and no duties in respect to the general execution of the laws, and they 
become charged with such responsibility only when insurrection 
exists against the authority of the United States or when resistance 
is encountered in the execution of its laws; in which case the law, 
vests in the President the power to use military force in the repression 
of such insurrection or in the execution of certain statutes, in which 
event they act, not on their own motion but in pursuance of instruc- 
tions from the President as the Commander in Chief of the military 
forces of the United States. C. 17508, Feb. 15, 1905. 

II G 2 a (1). The duty of the President to maintain order in the 
Phihppine Islands is precisely the same in respect to its source, char- 
acter, and extent as his duty to maintain order in the District of 
Columbia or in the Territory of New Mexico. It is exercised in the 
Phihppine Islands by the civil governor, who acts in behalf of the 
President, and who is provided with adequate civil agencies to assist 
him in the performance of liis duties in that regard. In the par- 
ticular case of disorder which is contemplated in the act of January 
30, 1903, a portion of the military forces of the United States is placed 
at his disposal, which is to be employed under his general direction in 
the restoration of order, but is to act under officers of the Army who 
are clothed with mihtary rank and, having such rank, are not only 
competent to exercise military command but are designated in the 
statute by title of office and are therein expressly vested with the 
power to exercise the particular command wnich is described in the 
statute. If the theater of a particular disturbance should extend 
over and include a considerable territorial area and should it be par- 
ticipated in bv a large number of the native inhabitants of the island, 
becoming so formidable that the constabulary with tha assistance of 



104 ARMY TT H. 

the Philippine Scouts could not deal with it, h case would arise for 
the general employment of military force, and the operations would 
be conducted by the proper military commander under the general 
direction of the President. C. 17508, Feb. 15, 1905. 

II H. The Chief Forester of the United States requested that 
Federal troops be placed on duty within certain forest reserves of the 
United States, with instructions to kill wild horses or other noxious 
animals on such reserves. Held, That even though everyone in the 
neighborhood of the wild-horse range appeared to be willing to take 
the risk of damage to private property, troops should not be placed 
upon that duty, and that if so placed it would entail endless compli- 
cations on the part of stockmen, who might allege that their stock 
were damaged. C. 238^6, Sept. 15, 1908. 

II I 1 . In a State of the Union the common law, or the law of the 
State, requires the principal peace officer, the sheriff in the county, 
before usmg his posse to read the riot act. In analogy to this pro- 
cedure, section 5300, R. S., charges the President with the perform- 
ance of a corresponding duty by the issue of a proclamation. Until 
such proclamation is issued troops of the United States will not be 
used with a view to preserve order in any one of the States of the 
Union. C. 2£474, Dec- 10, 1907. 

II I 2. Wlien a State has exhausted her own coercive resources to 
maintain order within her borders and has requested the Federal 
Government, under constitutional authority, to protect her from the 
violence of her own members, held, that the Federal Government 
must direct its own forces, as it can not transfer its own functions 
to a State. This is true whether the President commands the troops 
in person, as did President Washington during the Pennsylvania 
Rebellion of 1794, or devolves this duty on a subordinate. The 
Federal authorities will direct the operations. C. 8383, May 26, 1900. 

II I 3 a. When the President is required, in the execution of his 
duty, to send troops within one of the States of the Union to protect 
it from the violence of its own members, or to guarantee the execution 
of Federal statutes, he will be the judge of the size of the force to send, 
which may be possibly a few hundred men or many thousand troops. 
C. 8883, May 26, 1900. 

II I 3 b. When Federal troops are required within the limits of one 
of the States of the Union, to protect it from the violence of its own 
members, or to guarantee the execution of Federal statutes, lield that 
the district occupied may vary from one or two points to extensive 
portions of the State's territory. The measures of administration 
and control necessary to adopt in every instance wiU depend upon its 
own circumstances. The President or officer to whom he confides 
the direction of affairs will decide upon this, and if martial law be a 
necessary and proper measure he will institute it, as both the duty 
and the responsibility are his. C. 8383, May 26, 1900. 

II I 4. When, in compliance with a request from one of the States 
for assistance, or when, in execution of his duty as President of the 
United States, the Commander in Chief sends Federal troops within 
a State to protect the State from the violence of its own members, or 
to guarantee the execution of Federal statutes, a limitation is placed 
upon the operations of the Federal troops, namely, that they must 
do nothing which will nullify the guarantee in the Federal Constitu- 



ABMY 11 T f). 105 

tion of a republican form of government to the State. C. 8383, 
Mail 26, 1900. 

li I 5. Held that troops may be used to assist in ejecting tres- 
passers from Indian lands. C. 54.2, Sept. 11, 1907. 

II I 6. A railroad company requested a department commander to 
guard a high bridge which the company believed was in danger of 
being destroyed during war just across the boundary. Held that his 
action in furnishing the guard was proper under section 5298-5299 
R. S. in securing to the Government the use of that "post route, and 
military road." Held, further, that it was within the constitutional 
power of the President to guard the bridge against the invasion of 
United States territory by lawless bands from across the boundaiy. 
C. 27995, Mar. 21, 1911. 

II K 1 . While it is true that the status of neutrality is one that only 
comes into existence at times of pubhc war, lield that the neutrahty 
laws of the United States are happily drawn so as not to depend upon 
the existence of a state of war for their enforcement, as the several acts 
which are therein made criminal and punishable acquire the character 
of crimes and misdemeanors when committed against a foreign State 
with which the United States is at peace. C. 22132, July 6, 1908. 

II K 1 a. The question was raised under the neutrality laws of the 
United States, as found in the Revised Statutes (sec. 5281 to 5291), 
and the act of March 4, 1909 (35 Stat. 1090), as to what constitutes a 
militaiy expedition or enterprise witliin the meaning of sections 13 
and 14 of the act of March 4, 1909. Held that any combination of 
men organized and provided with means witliin the territory or juris- 
diction of the United States to go to a foreign country, with the Gov- 
ernment of which the United States is at peace, for the purpose of 
making war on that Government, is a military expedition or enter- 
prise within che meaning of the statute. The number of men in the 
combination is not necessarily decisive. Three or four would be 
sufficient, other necessary conditions being present. The organiza- 
tion need not be efficient or complete. It is sufficient that there is 
submission by common consent to the will and direction of one or 
more leaders. The means of making war, with which the combina- 
tion is provided, need not be adequate or in the personal possession of 
the men, as it is sufficient if such means are adapted to the purpose of 
making war and have been provided for the use of the men when 
occasion may require.^ C. 22132, Apr. 22, 1911. 

II K 1 b. On a question as to how much force can be used by the 
commanding general of American troops in the enforcement of the 
neutrality of the United States, held that in carrying out the provi- 
sions of section 14 of the act of March 4, 1909 (35 Stat. 1152), a mili- 
tary detachment may resort to all the force that under the circum- 
stances of the case appear to be necessary, even though in doing so it 
be necessary to use deadly weapons, with which the detachment may 
be armed. The actual use of saber, bayonet, or firearm wiU generally 
be preceded by due warning to the parties sought to be arrested, and 
will be resorted to after such warning only when no lesser measure of 
force may reasonably be expected to accomplish the lawful end in 
view, d 22132, Apr. 22, 1911. 

' See U. S. V. Yebanez, 53 Fed. Rep. 538; U. S. v. Hart, 74 Fed. Rep. 727; U. S. v. 
Hart, 78 Fed. Rep. 874; U. S. v. Murphy, 84 Fed. Rep. 613. 



106 ARMY IT K 1 C. 

II K 1 c. Held that when information is in the possession of the 
commanding general of a department which is adjacent to the boun- 
dary hne of the United States and a friendly country, that bands of 
armed men are planning to cross the border and make war upon such 
friendly country, he should furnish such information at once to the 
nearest United States marshal or United States attorney wdth a view 
to his taking the proper steps to bring the offending parties to justice.^' 
C. 22132, Sept. 26, 1907. 

II K 1 d. When the armed forces of the United States are used to] 
enforce the neutrality laws of the United States, lield that there is noj 
authority for such forces to cross the boundary line into the territory of 
a friendly country even to pursue armed forces that have crossed from] 
the territory of the United States into such territory or friendly country] 
with a view to making war on that friendly country. C. 23132, July\ 
6, 1908. 

II K 1 e (1). Held that when arms, ammunition, animals, or othei 
contraband are seized by American troops near the border betweei 
the United States and a friendly foreign State which is being sub-J 
jected to the experience of civil war or insurrection, the commanding 
general of the American troops should as soon as possible turn sucl 
seized property over to the Federal civil avithorities. C. 22132, Nov.\ 
21,1911. 

II K 1 e (2). In a case when a neighboring State was passing! 
through the experience of civil war and instructions had been sent! 
to the commanding general of United States troops nearest to the] 
border line between the United States and the neighboring State! 
to preserve the neutrality of the United States, and pursuant to his] 
instructions arms and ammunition had been captured by American] 
troops from a band which fled at the approach of the American troops,! 
Jield that the comnianding officer of the troops should retain captured 
property in his possession, and that if a writ of replevin should issue] 
out of a State court he should resist it and give notice to the State] 
court that the property was held by him under the authority of the] 
United States, at the same time advising the United States attorney] 
of his action. Held further that if a writ of replevin should issue out] 
of a Federal court he will, under advice of said attorney, make proper 
return thereto. C. 22132, Apr. 25, 1911. 

II K 1 f (1). During the progress of an engagement between! 
opposing forces in a time of civil war in a neighboring State, fire was! 
directed across the border line and into the territory of the United] 
States. Held that the employment by the commanding general of 
the American troops in that vicinity of a civilian to carry a message^ 
to the commanding officers of the two opposing forces, in which mes- 
sage he notified them of the fact that shots were being fired across the 
border line into the United States and requested them to desist, was 
a proper action, and that such messenger could be paid for his services 
from the appropriation ''Contingencies of the Armv."^ C. 22132, May 
3, 1911. 

^ See section 5287, R. S., which authorizes the President, or such person as he shall 
empower for the purpose, to prevent the carrying out of any such expedition or enter- 
prise. 

2 See XVI Comp. Dec, 132. 



ARMY II K 1 f (2). 107 

II K 1 f (2). On a question as to what could ho done by the com- 
manding general of American troops on duty near the border hue 
between the United States and a friendly foreign State in a contin- 
gency wiien insurgents within that foreign State disguised as regular 
troops should deliberately and wantonly, and without bemg provoked, 
fire across the border line upon American troops, lield that the com- 
manding general of the American troops may m such a contingency 
defend against such an attack and aggressively to the extent necessary 
to protect his troops. C. 22132, May I^, 1911. 

II K 1 g (1). Held that when the neutrality laws of the United 
States are being violated or its territory is menaced with invasion, 
the cost of executing such neutrality laws would constitute primarily 
a charge against the United States rather than against the State, and 
that, when in an unusual emergency the peace of one of the States of 
the Union equalh^ with that of the United States is disturbed or 
threatened, or its territorial integrity is menaced with invasion, the 
commanding general of United States troops in that vicintiy should 
maintaui the most cordial relations with the State authorities, but 
that he should constantl}^ bear in mind that under ordinary circurri- 
stances cooperation of the State authorities which involves unusual 
time or considerable demands upon the State treasury should be 
sedulously avoided. C. 22132, Aug. 27, 1908. 

II K 1 g (2). Held that the commanding general of Federal troops 
along the border of the United States and a friendly foreign State, 
which is being subjected to the experience of civil war, is not author- 
ized to support the authorities of one of the States of the Union in 
the execution of the State laws. C. 22132,^ Nov. 21,1911.^ ^ 

II K 1 h (1). The practice is fast becoming general for civil authori- 
ties to take finger prints of persons held by them charged with crime. 
Held, however, that when troops cross the boundar}^ from a friendly 
country which is being subjected to the experience of civil war, and 
are interned within the United States, there is no occasion under 
which the finger prints of svich persons should be taken. C. 22132, 
June 26, 1911. 

V A. Under Article IX of the peace protocol signed September 7, 
1901, between China and the Powers, the Chinese Government con- 
ceded the right to the Powers in the protocol annexed to the letter 
of the 16th of Januar}', 1901, to occupy certain points, to be deter- 
mined by an agreement between them, for the maintenance of open 
communication between the capital and the sea. Held that the 
object of the military occupation of certain points between Peking 
and the sea is to enable the foreign legations at the capital to have 
free passage to the sea, to make it possible for the Powers to send 
troops to the capital, in case the disturbed condition of China makes 
it necessary for the Powers to act, and to protect foreign officials 
and merchants. Held therefore that United States forces when 
charged with the protection of a certain portion of this line from 
Peking to the sea are not only authorized under the protocol, but 
are bound by their implied obligations to the other signatory Powers 
to prevent, by force if necessary, any act committed by the Imperial 
Government or by any revolutionary party which would result in 
the interruption of this communication. This maintenance of free 
communication should be the sole criterion by which the command- 



108 AEMY BANDS I A 1. 

ing officer of the American forces detailed for duty on this hne, by 
which he is to be guided in arriving at a decision as to the legahty 
or advisability of any measure he may propose to take in the section 
assigned to the American troops. Held further that any act com- 
mitted that tends to interfere with free communication along the 
section assigned us is a violation of our treaty rights and should be 
prevented. C. 29383, Jan. 15, 1912. 

ARMY BANDS.^ 

I. COMPETITION WITH CIVIL BANDS. 

A. What Constitutes. 

1. The same form of music must be furnished and 

2. There may be competition when (here is but one band in the locality. 

3. Quality of local music not a factor. 

4. Price charged for musical services not a factor Page 109 

5. Union affiliations of civil musicians not a factor. 

6. Inhibition of statute applies to both bands and the individual mem- 

bers thereof. 

B. Who Shall Determine if Competition Exists. 

1. Post commander, but 

Post commander not allowed discretion as to merits of civilian band, 

and it is 
Duty of those desiring band to show lack of competition. 

C. Competition Does Not Exist. 

1. Where music by military band is furnished free. 

2. Where Army band plays for civilians under competent orders. 

3. Where member of Army band serves as instructor to civil band. 

4. In the case of Army bandsmen on the retired list. 

D. Volunteer Bands. 

1. Public money can not be used to buy music Page 110 

2. Instruments, how secured. 

3. Competition with civil bands. 

I A 1 . While the terms of the prohibition in respect to Army 
bands competing with local musicians are quite sweeping, there 
must be competition in respect to the particular form of musicial 
service which is called for by the employer. Where, therefore, a 
brass band was desired and there was no civil brass band in the 
locality, held, that it would be lawful for an Army band to render 
the service desired. C. 14639, May 14, 1910. 

I A 2. There may be competition in a locality where there is a 
single organized civil band which is capable of rendering service 
similar to that furnished by an Ai'my band. The service so rendered 
may be less acceptable than that which the Army band is capable 
of rendering; indeed it may be entirely unacceptable, but as long as 
there is a single band of local musicians which desires to compete 
the Army band is incapacitated and can not accept a proffered engage- 
ment. C. 14639, June 10 and Oct. 14, 1908.. 

I A 3. The quality of the local music is not a factor in determining 
the question of competition ; if there are civilian musicians who desire 
to furnish music, the military band can not receive compensation for 

* Prepared by Lieut. Col. John Biddle Porter, judge advocate, assistant to Judge 
Advocate General. 



ARMY ba:nds I a 4. 109 

playing. C. U639, Feb. 19, Mar. 5, Mar. 2^ and Aug. 18, 1909 
and May 6, 1911. 

I A 4. The determination of whether there is or is not competi- 
tion between a military and a civil band does not depend on the 
price charged by either for services. C. 14-639, Feh. 19, Mar. 2^, 
and Aug. 18, 1909 and Feb. 28, 1911. 

I A 5. Held, that the competition which is prohibited to Ai"my 
bands is that in connection with local musicians, independently of 
their union affiliations. C. 14.639, June 8, Sept. 25, and Oct. I4, 1908. 

I A 6,. The act of May 11, 1908 (35 Stat. 110), is equally applicable 
to bands and to individual members thereof. C. 14639, Sept. 25, 1908. 

I B 1 . The duty of determining whether the acceptance of an engage- 
ment by an Army band will come within the operation of the act of 
May 11, 1908 (35 Stat. 110), is one with which the post commander 
is charged, and in the performance of which he is to determme 
whether the acceptance of a particular engagement will place an 
Army band in competition with a similar local organization. The 
law vests no discretion in the post commander to pass upon the rela- 
tive merits of civilian bands or to say that a particular band is or is 
not of sufficient musical standing to compete. Those who desire 
the services of the Army band should be able to make such represen- 
tations to the commanding officer as will establish to his satisfaction 
the fact that there are no similar civil organizations which desire to 
compete, in order to permit the employment of the Army band. 
C. 14639, June 10, Aug. 22, Sept. 17, Oct. I4, 1908, and Feb. 19, 1909. 

I C 1. In a case where an Ai-my band furnished music outside the 
limits of a military post, but without remuneration, held, that there 
had been no violation of the act of May 11, 1908 (35 Stat. 110), 
which forbids the furnishing of music for remuneration by military 
bands outside the limits of a military post in competition with local 
civil musicians. C. 14639, Sept. 17, 1908, Mar. 12, 1909, and Nov. 
11, 1911. So for a military band to give free concerts in a city in 
which, or near which, it is stationed is not a contravention of the 
law. C. 14639, Oct. 31, 1911. The law does not forbid the playing 
I of musicians outside the limits of a militar}^ post, but forbids their 
receiving compensation for playing when in competition with local 
civil musicians. C. 14639, July 7, Oct. I4, 1908, and May 6 and 25, 
1911. 

The act of May 11, 1908 (35 Stat. 110), does not contemplate that 
military bands may not voluntarily play for civihans, if by volun- 
tarily is meant without remuneration. C. 1A639, Sept. 17, 1908. 

I C 2 Where an Army band was placed by tne Secretary of War at 
the disposal of the executive committee of an irrigation congress, 
Tield, that the placmg of the band on this duty was in the operation 
of lawful orders from competent military authority and that there 
was no infraction of the act of May 11, 1908 (35 Stat. 110). C. 14639, 
July 30, 1909. 

I C 3. Where a musician of, a miUtary band was employed as 
instructor in music by a local civilian band, lield, that he was not 
engaged in furnishing musical services within the prohibition of the 
act of May 11, 1908 (35 Stat. 110). C. 14639, Sept. 10,-1909. 

I C 4. The inhibition contained in the act of May 11, 1908 (35 Stat. 
110), is agamst Army bands or members thereof receiving remunera- 
tion for furnishing music outside the limits of military posts in com- 



110 ARMY BANDS — ^ARREST. 

petition with local civilian musicians, lield, therefore, that a musician 
on the retired list of the Army, not being a band or a member thereof, 
did not come within the inhibition. C. 24179, Dec. 9, 1908. 

I D 1 . Where it was proposed to expend public money in furnishing 
music to bands which are not authorized by law as a part of the mili- 
tary establishment, Jield, that such an expenditure would not be 
authorized by law, as the Executive is without authority, unaided by 
legislation, to establish bands in the military service. C. 23870, Dec. 
11, 1908. 

I D 2. Volunteer bands at military posts are not organizations 
established by law as a part of the Army; held, therefore, that in so 
far as the purchase of new instruments antl material are concerned 
the Secretary of War is restricted in the procurement of such articles 
to the reasonable needs of the bands which are authorized by existing 
law; where, however, a stock of instruments has accumulated in 
excess of the legitimate demand, it is equally wdthin the authority of 
the Secretary of War to permit their use in a case where the welfare, 
comfort, and contentment of the enhsted men of the Army would be 
promoted by such use. C. 23870, Sept. 21, 1908. 

IDS. Semhle, that volunteer bands composed of enlisted men, 
maintained at military posts, are bands within the inhibition of the 
act of May 11, 1908 (35 Stat. 110), forbiddmg military bands com- 
peting with civilian local musicians for remuneration. C. 14639, May 
21, 1908; Sept. 16, 1910; Aug. 22, 1911. 

CROSS REFERENCE. 

Refusal to play See Articles of War XXI C 2 c. 

Retirement ofviember of. See Retirement II E 2 a. 

Money paid to fund See Public Money I A. 

ARMY OF CUBAN PACIFICATION. 

Army See Articles of War LXXII F 1. 

Discharge without honor from See Discharge III B 1. 

ARMY REGULATIONS. 

See Laws II A lo B. 

ARRAIGNMENT, 

Of accused See Discipline IX E 1 to 5 b. 

Record of See Discipline XIII D. 

ARREST. 

Absentee See Articles of War LIX I 2. 

Affrayer by bystander See Articles of War XXIV A. 

Attaches jurisdiction See Discipline VIII D 1 to 4. 

Breach of See Articles of War LXII C 17; 18; LXV 

A to C. 

By Judge Advocate See Discipline IV B 5. 

Civilian by military See Command VA3c; VA3c(1); VA3d 

: (1). 

See Claims XII E. 

Civilians in Indian country See Army II C. 

Deserters : See Desertion III A to H. 

Dismissed officer or discharged soldier See Command V A 6 b (I) (b). 



ARTICLES OF WAR: SYNOPSIS. IH 

Evidence of protracted See Discipline XI A 14 a; XIV E 9 d 

(1) (a). 

Flag of truce See War I C 10. 

Force that may be used ' See Command V A 3 c. 

Illegal of civilian See Army II D. 

Jurisdiction does not depend on See Discipline VIII G 1 a; b. 

Member of general court-martial See Discipline VI E. 

Military See Discipline I A to E 3 ; II C. 

Military by civil See Articles of War LIX A. 

National cemetery. See Public Property IV A 3 b. 

Payment during , See Pay and Allowances I Alb; c. 

Photographing fortifications See War I C 6 g (1). 

Release from See Articles of War LXXI C; D. ' 

Violation of navigation laws See Navigable Waters IX B. 

Witness See Discipline X L 1. 

ARTICLES OF WAR.^ 

Article. 

m. A. ''Infamous Criminal Offense " Defined Page 120 

vm. A. Does Not Refer to Funds. 
XVn. A. "His Clothing" Defined. (See Clothing Allowance.) 

B. Other Wrongful Dispositions, How Charged. 

C. Pecuniary Responsibility, How Settled, 
XIX. A. Adverse Criticism Not Offense. 

XXI. A. " Superior Officer " Defined Page 121 

B. "Willful Refusal or Neglect." 

1. To pay debt to company tailor. 
a. To act as cook. 

C. Acts that are Not Violations of this Article. 

1. Officers. 

a. Refuses to sign certificate. 

2. Enlisted men. 

a. Refuses to act as officer's servant Page 122 

b. Refuses to contract marriage. 

c. Refuses to play as musician in town. 

d. Refuses prophylactic treatment because of religious belief. 

D. Rule: Obey Order First, Question Legality Afterwards. 

E. Homicide of Superior Officer. 

1. Soldier may be tried by court-martial. 

2. May be punished capitally. 

XXn. A. Mutiny Defined Page 123 

B. Refusal in Combination t© Obey Unlawful Order Not Mutiny, 
XXIV. A. Any Bystander Should Arrest an Affrayer. 

XXV. A. Confers no Jurisdiction Page 124 

XXVI, A. Deliberate Invitation Necessary. 

XXIX. A. Limited to Regimental Commander Page 125 

B. Statements in Efficiency Reports. 

' As shown by the synopsis above, an opinion has not been written on each of 
the Articles of War. The 128 articles, briefly stated, are as follows: 



Article. 

1. Officers shall subscribe these articles. 

2. Articles to be read to recruits. 

3. Officers making unlawful enlist- 

ments. 

4. Discharges. 

5. Mustering persons not soldiers. 

6. Taking money on mustering. 



Article. 

7. Returns of regiments, etc. 

8. False returns. 

9. Captured stores secured for public 

service. 

10. Accountability for arms, etc:. 

11. Furloughs. 

12. Musters. 



112 



AliTICLEti UF WAii: bl\N0PSi!5. 



Article 




XXX. 


A. 




B. 




C. 




D. 




E. 


xxxn. 


A. 




B. 


xxxvm. 


A. 




B. 



D 

XXXK. A 

XL 

XLn 



XLV. 



XL VI. A, 

B, 

XLvra. A. 

B, 



D, 

E, 
F. 

L. A 

LL A 
LH. A 

B 



Does Not Authorize Trial of Officers. 

One Hundred and Third Article op War Does Not Apply. 
Only Regimental Commanders Can Summon Court. 
Limitations on Province op Court. 

Right to Complain Page 126 

Means A*bsence from Post. 
Absence to Evade Duty. 

Absence that Includes Failure "to Repair" Page 127 

Drunkenness by Liquor or Drug. 
Officers. 

1. Post commander always on duty. 

2. Medical officer always on duty. 

3. Officer drunk when reporting for duty. 

a. Not permitted to enter upon duty. 
Soldiers. 

1. Drunk before entrance on duty. 
Right Can Not be Prejudiced by Regulations. 

"On Post" Defined Page 128 

Unauthorized Absence prom Place op Guard. 

Misbehavior. 

"On Duty" Defined. 

"Whosoever" Defined. 

"Enemy " Defined Page 129 

Relieving May be Done by Exchange. 

1. Exchange of money for commodities distinguished from trading. 
Mailing op Letter. 
Material Information Communicated. 
Restored to Duty Without Trial — Time to be Made Good. 
United States May AVaive its Exercise of Soldier's Lia- 
bility Page 1.30 

Convicted. 

1. Sentence does not include discharge — time to be good. 

2. Need not be mentioned in sentence. 

3. Liability remains after expiration of term of enlistment. 

4. Conviction disapproved. 
Acquitted. 

Time Made Good Must be Military Service. 
Liability Continues After One Hundred and Third Article 
OP War Has Run. 

Does Not Create Special Offense Page ISl 

"Advising" and "Persuading" Defined. 
Attendance at Church Not Military P'ormation. 
Attendance at Church is a Duty. 



Article. 

13. False certificates. 

14. False muster. 

15. Allowing military stores to be dam- 

aged . 

16. Wasting ammunition. 

17. Losing or spoiling horses, accouter- 

ments, etc. 

18. Commanders not to be interested in 

sale of victuals, etc. 



Article. 

19. Disrespectful words against the Presi- 

dent, etc. 

20. Disrespect toward commanding offi- 

cer. 

21. Striking a superior officer. 
Mutiny. 

Failing to resist mutiny. 
Quarrels and frays. 
Reproachful or provoking speeches. 



ARTICLES OF WAE : SYNOPSIS. 



11^ 



Article. 
LIV. A, 
B. 
C. 

D. 



Lvm. A. 

B. 



LIX, 



H. 
1. 



K. 
L. 



Includes Damage to Person or Property. 

Action is Mandatory Page 132 

Assessment of Whole Command. 

1. Those not present excepted. 
In Addition to Punishment. 

1. By civil authorities. 

2. By military authorities. 

General Court-Martial Can Not be Used Instead of Board. 
Procedure. 

1. Men in the Regular Army. 

2. Men in the militia Page 133 

Enforceable in Cuba and the Philippine Islands. 

Can Not be Enforced. 

1. In favor of military persons. 

2. In case of embezzlement. 

Jurisdiction of Military Court Concurrent with Civil. 
Sentence to be Equal to or Greater than Provided by State 

Law. 

Local Laws op Foreign Country Do Not Apply Page 1.J4 

Situation in Philippines During Military Occupation. 
Recognizes Subordination op Military to Civil. 
Requirement as to Application. 

" Laws of Land " Defined Page l.J5 

Jurisdiction Which First Attaches Should Try Case. 

Soldier Should Await Formal Application. „„ Page 136 

'■Any of the United States" Defined. 
State May Make Demand. 

1. Then undertakes expense of man's transportation. 

a. To place of trial. ' 

b. And return to station. 

(1) Commanding officer should impose second condition 

when possible Page 137 

Limited to Officers and Soldiers. 
Does Not Apply. 

1. To time of war. 

2. To absent officer or soldier. 

3. To offense of perjury. 

Soldier Returned After Surrender Under Fifty-Ninth Article 

OF War Before Conclusion op Case. 
Homicide by Soldier. 

1. At post in United States. 

2. At post in Philippines Page 138 



Article. 

26. Challenges to fight duels. 

27. Allowing persons to go out and fight; 

seconds and promoters. 

28. ITpbraiding another for refusing clial- 

lenge. 

29. Wrongs to officers, redress of. 

30. Wrongs to soldiers, redress of. 

31. Lying out of quarters. 

93673°— 17 8 



Article. 

32. Soldiers absent withoiit leave. 

33. Absent from parade without leave. 

34. One mile from camp without leave. 

35. Failing to retire at retreat. 

36. Hiring duty. 

37. Conniving at hiring duty. 

38. Drunk on duty. 

39. Sentinel sleeping on post. 



114 



ABTICLES OF WAR; SYNOPSIS. 



B. 



c. 

D. 
E. 



Article. 

LX. A. Offenses by Officers. 

1. Duplication of pay accounts. 

2. Collusion with contractor. 

3. Using Government property for private purposes. 

a. Even temporary use of Government horses. 

4. Failure to turn over public money. 

5. Inducing civilian to make fraudulent lease Page 139 

Offenses by Soldiers. 

1. Forging a final statement. 

2. Falsifying entry in clothing book. 
"Stealing" Defined. 

Misappropriation Need Not Be For Private Profit. 
Liability to Trial After Separation prom Service. 

1. If under military jurisdiction. 

2. Of Volunteers or militiamen in service of United States. 

3. Provision not yet held unconstitutional Page 140 

4. Does not put man on pay basis. 

F. Article Not Affected by Act op March 3, 1875. 
LXI. A. Conduct Must be Manifestly Unbefitting Officer and Gentle- 
man. 

1. SuflBcient if morally wrong. 
B. Instances of Conduct Unbecoming. 

1. False official statement. 

2. Preferring false accusation Page 141 

3. Corruptly influencing vote of officer. 

4. Appropriating Government property to personal use. 

5. Violation of pledge by oflScer. 

6. Officer drunk in public. 

7. Disorderly fighting in public. 

8. Gambling in public with enlisted men by officer. 

9. Continued dishonorg-ble nonpayment of debt. 

a. After assurance of payment. 

b. Which brings discredit upon the service Page 14i 

c. Money borrowed from soldier. 

10. Check against no funds in bank. 

11. Officer charging interest on loan to soldier. 

12. Committing bigamy. 

13. Abusing wife Page 14S 

14. Manufacture of false testimony. 

15. Duplication of pay accounts. 



Article. 

40. Quitting guard, etc., without leave. 

41. False alarms. 

42. Misbehavior before the enemy, cow- 

ardice, etc. 

43. Compelling a surrender. 

44. Disclosing watchword. 

45. Relieving the enemy. 

46. Corresponding with the enemy. 

47. Desertion. 

48. Deserter shall serve full term. 

49. Desertion by resignation. 



Article. 

50. Enlisting in other regiment without 

discharge. 

51. Advising to desert. 

52. Misconduct at divine service. 

53. Profane oaths. 

54. Officers to keep good order in their 

commands. 

55. Waste or spoil and destruction of 

property without orders. 

56. Violence to persons bringing provi- 



ARTICLES OF WAE : SYNOPSIS. 



115 



I 



Article. 
LXn. A. "Crimes" Defined. 

B. "To THE Prejudice" Qualifies Crime. 

C. Offenses Under Sixty-second Article of War. 

1. Improper publication of criticism of officer Page 144 

2. Unauthorized withdrawal of public funds. 

3. Failure to account for public money received Page 146 

4. Unauthorized payment of public money. 

5. Offenses against civilians. 

a. If on duty — in uniform, etc. 

6. Offenses against nature Page 147 

7. Burglary. 

8. Larceny. (See Larceny.) 

9. False swearing. 

10. Improper disposition of property. 

11. Disrespectful language in regard to officer by soldier. . Page 148 

12. Disobedience of noncommissioned officer's order. 

13. Drunkenness at hour for duty. 

14. Drunkenness while absent without leave. 

15. Loaning money at usurious rates. 

16. Disturbance upon private premises.' 

17. Delays return when permitted to leave confinement. 

18. Failure to obey order. 

D. Instances op Disorders or Neglect Page 149 

E. Acts Which are Not Offenses Under Sixty-second Article op 

War Page 150 

F. Manslaughter Page 151 

LXTTT. A. Punishment of Retainers to the Camp. 

1. Officers' servants, etc., punished by discharge. 

B. Jurisdiction Does Not Extend to Time op Peace. 

1. Even if offense committed in war. 

C. Trials Restricted to Imperative Necessities. 

D. Violation of Sixty-third Article of War Subjects to Trial by 

General Court-Martial Page 152 

E. Forfeiture Reverts to Proper Appropriation. 
LXV. A. The Leaving Should be Deliberately Insubordinate. 

B. Regimental Commander is Commanding Officer. 

C. Accused Not Entitled to Release Until Case Acted on. 
LXVI. A. Crimes Defined. 

LXXI. A. "Ten Days" Means After Arrest. 

B. List of Witnesses May be Omitted. 

C. "Except at Remote Stations" Explained. 

D. Officer Can Not Release Himself '. Page 153 



Article. 

57. Forcing a safeguard. 

Certain crimes during rebellion. 
Offenders to be delivered up to civil 

magistrates. 
Certain kinds of frauds against the 

United States. 
Conduct unbecoming an officer and 

gentleman. 
Crimes and disorders to ijrejudice of 

military discipline. 



Article. 

63. Retainers of camp. 

61. All troops subject to Articles of War. 

65. Arrest of officers accused of crimes. 

Soldiers accused of crimes. 

Receiving prisoners. 

Report of prisoners. 

Releasing prisoner without author- 
ity; escapes. 

Duration of confinement. 



66. 
67. 
68. 
69. 



70. 



71. Copy of charges and time of trial. 



116 



ARTICLES OF WAR.: SYNOPSIS. 



Article. 

Lxxn. A. 
B. 

c. 

D. 
E. 
F. 
G. 



LXXm. A. 



LXXV. A. 

B. 

Lxxvn. A. 
Lxxvra. A. 



Authority to Order Court-Martial is Attribute of Command. 
Convening Authority's Decision is Final. 
Division Commander. 

1. When acting as department commander. 
Corps Commander. 

1. When corps is a separate Army. 
Staff Officer. 

1. Can not add or relieve members Page 154 

Army. 

1. Of Cuban passification. 
Officers Not Qualified to Order Court. 

1. liieutenant colonel. 

2. Or to add or relieve members. 
Troops Temporarily in Department. 
Accuser. 

1. Determined mainly by "animus." 

a. Inspector reports against trial Page 155 

2. When denials may be proved. 

3. Does not become accuser. 

a. By preparing charges by order Page 156 

(!) And orders department judge advocate to do so. 
Separate Brigade Defined. 

1. Should be designated. 

2. Provost marshal's command, Manila, P. I Page 157 

No Authority to Convene Court. 

1. When separate brigade reduced to one regiment. 

2. Military governor of a district. 

3. Force on transport merely - Page 158 

Convening Authority. 

1. Decides on number of members. 
Less than Five. 

1. Can not organize court. 

2. Or proceed if already organized. 

3. Can not dissolve itself. 
Regular Officer. 

1. May be member to try Philippine scout. 

2. May be judge advocate to try volunteers. 

3. May not be member to try volunteers. 

Marine Officer Accused, Some Members of Court Should be 
Marines ' Page 159 



Article. 

72. Who may appoint general courts- 

martial. 

73. Commanders of divisions and sepa- 

rate brigades may appoint in time 
of war. 

74. Judge advocate. 

75. Members of general courts-martial. 

76. When requisite numl)er not atapost. 

77. Regular officers, on what courts may 

sit. 



Article. 

78. Marine and Regular Army oflicers 

associated on courts. 

79. Officers triable by general courts- 

martial. 

80. Field officers' courts. 

81. Regimental courts. 

82. Garrison courts. 

83. Jurisdiction of inferior courts. 

84. Oath of members of courts-martial. 

85. Oath of judge advocate. 



J 



ARTICLES OF WAR: SYNOPSIS. 



117 



Article. 

Lxxxn. A. 



B. 

c. 



Officer Commanding. 

1. Not limited as to rank Fage 15'J 

2. Can not detail himself. 
"Other Place" Defined. 
"Different Corps." 

1. One man does not make corps. 

2. Commanding Officer, Army and Navy General Hospital, Hot 

Springs, Ark. 
LXXXm. A. Graver Offenses Not Tried by Inferior Court Page 160 

B. Capital Offenses. 

1. Charge under twenty-first article of war can not be tried. 

C. Limitations Refer to Single Sentence. 

1. Forfeitures. 

a. Limited to one month's pay. 

2. Reduction to ranks. 

LXXXIV. A. Oath, How Administered Page 161 

B. "The Matter Before Them" Defined. 

C. "Not Divulge the Sentence." 

1. Object of this provision. 

2. Not even in the record. 

3. Reopening of court for previous convictions Page 162 

4. Not even to the clerk. 

LXXXVI. A. Court Exercises Authority Over Acts in Its Presence Only. 
1. May exclude a spectator, 
B. Contempt. 

1. May be punished under this article. 

a. Procedure. 

b. A civilian's refusal to testify is not contempt Page 163 

A. Grounds for Challenge. 

B. Insufficient Grounds for Challenge. 

C. Challenge Should be Made at Proper Stage of Procedure. 
Court as a Whole Not Subject to Challenge. 
Evidence op High Public Officers. 

1. Should be taken by deposition. 

Deposition Must be Submitted as a Whole Page 164 

If Not Tendered, Other Party May Use It. 

D. Depositions Taken Abroad. 

E. Court Can Not Exclude Deposition. 
Reasons for Not Receiving Deposition. 
Authority of Court Over Deposition. 
Not a Violation op Sixth Amendment jo Constitution. 

Can Not be Read in Capital Cases Page 165 

Witness Resides Within the State. 



Lxxxvm. 



xci. 



F. 
G. 
H. 

I. 
K. 



Article. 

86. Contempts of court. 

87. Behavior of members. 

88. Challenges by prisoner. 

89. Prisoner standing mute. 

90. Judge advocate, prosecutor, 

counsel for prisoner. 

91. Depositions. 

92. Oath of witness. 

93. Continuances. 



and 



Article. 

94. Hours of sitting. 

95. Order of voting. 

96. Sentence of death. 

97. Penitentiaries. 

98. Flogging. 

99. Discharge and dismissal of officers. 

100. Publication of officers cashiered for 

cowardice or fraud. 

101. Suspension of officers' pay. 



118 



ARTICLES OP war: SYNOPSIS. 



Article. 


xcm. 


A 


XGVI. 


A. 




B. 


xcvn. 


A 




B 




C. 




D 




E 


c. 


A 




B 


en. 


A 




B 




C. 



I. 
cm. A. 

B 



Good Grounds for Continuance. 

1 . To procure counsel . 

2. Copy of charges differs materially from original. 

Sentence of Death is Supported by Finding on One Capital 

Charge. 
Court Can Not Designate Time or Place. 
Prohibits Confinement in Penitentiary for Military Offenses. 

Authorizes Penitentiary Sentence Page 166 

"Penitentiary" Defined. 

In Fixing Sentence Court Should Consult Statute. 
Case of Conviction op Sever.\l Offenses. 
"Cowardice" and "Fraud" Defined. 

What Constitutes Publication Page 167 

"Jeopardy" Means Conviction or Acquittal. 

1. Without regard to action of reviewing, authority. 
Cases of "No Second Trial." 
One Act, but Two Offenses Page 168 

1. Murder and a military offense. 

a. Case of officer Page 169 

b. Case of soldier. 

2. Manslaughter and mutiny. 

Same Offense Charged under New Article. 
Fraudulent Enlistment. 

1. Can not try separately for two misrepresentations. 

Reconsideration not a Second Trials Page 170 

Trial by Court of Inquiry not a Former Trial. 
Sentinel Commits Homicide. 

1. On escaping prisoner. 

2. On innocent bystander Pa^e 171 

Soldier Assaults a Civilian. 

"Order for Trial" Defined. 
Impediment. 

1. Mere concealment is not. 

2. Allegation of. 

Limits Forty-eighth and Sixtieth Articles op War Page 172 

Limitation is Matter op Defense. 

"Absence" Defined as "Fleeing from Justice." 

Desertion. 

1. Begins to run at end of term. 

2. Does not run in time of war Page 173 

a. Desertion in Boxer uprising was in time of war. 

3. Second desertion before expiration of term of enlistment add two 

years to unexpired portion of term. 



Article. 

102. No person tried twice for same of- 

fence. 

103. Limitation of time of prosecution. 

104. Approval of sentence by officer or- 

dering court. 

105. Confirmation of death sentence. 

106. Confirmation of dismissals in tin;ie 

of peace. 



Article. 

107. Dismissal by division or brigade 

courts. 

108. General officers, sentences respect- 

ing. 

109. Confirmation by officer ordering 

court. 

110. Confirmation of field officers' sen- 

tences. 



ARTICLES OF WAR: SYNOPSIS. 



119 



Article. 

Cni. F. Desertion— Continued. 

4. Second desertion after expiration of term of enlistment add 

two years to portion of term yet unserved under the forty- 
eighth article of war. 

5. In time of peace even if there is an enemy, statute runs unless the 

desertion is in face of the enemy. 
G. A deserter working on a transport in the Philippine Islands was 
not absent from the United States. 

G. Article Applies to Escape Page 174 

H. In Fraudulent Enlistment Except Without Discharge Limita- 
tion Runs from Date op Last Receipt of Pay or Allowances. 
Crv. A. Approval. 

1. Should be recorded even though President's action is necessary. 

2. Should be formal in character. 

B. Accused Transferred Out of Department; Former Department 

Commander Acts on Case. 

C. Officer Commanding for the Time Being. 

1. Successor to the command. 

a. Should so indicate on record Page 175 

b. Not limited to rank. 

2. Corps commander when division is discontinued. 

3. Division commander when separate brigade is merged with divi- 

sion. 

4. Department commander when post discontinued. 

5. Senior line officer present and for duty. 

a. When department commander is ill. 
Department Commander in Time of War May Confirm. 
When Division or Brigade not in Separate Army, President is 

Confirming Authority. 

Procedure Page 176 

Authority to Pardon. 

1. Can not be delegated. 

a. Does not include authority, to commute. 
(1) Even in time of war. 

b. Or to substitute. 

c. Continues after approval Page 177 

(1) Except as to dishonorably discharged soldiers sentenced 

to confinement in military prison or penitentiary. 
"Mitigation" Defined. 
Illegal Sentence can not be Mitigated. 
Dishonorable Discharge can not be Mitigated. 
Power of Mitigation of Sentence of Inferior Court is in Actual 

Commanding Officer. 
Copy, How Obtained Page 178 



CVI. 


A 


cvn. 


A 


CXI. 


A 


cxn 


A. 



B. 

c. 

D, 
E. 

CXIV. A. 



Article. 

111. Suspension of sentence of death or 

dismissal. 

112. Pardon and mitigation of sentences. 

113. Proceedings forwarded to Judge 

Advocate General. 

114. Party entitled to a copy. 

115. Courts of inquiry, how ordered. 

116. Members of court of inquiry. 



Article. 

117. Oaths of members and recorder of 

court of inquiry. 

118. Witnesses before courts of inquiry. 

119. Opinion, when given by. 

120. Authentication of proceedings of 

court of inquiry. 

121. Proceedings of court of inquiry used 

as evidence. 



120 



ABTICLES OF WAR IIT A. 



Article. 
CXV. A. Court of inquiry is not a Demandable Right. 
B. Court of Inquiry is a Board and not a Court. 
CXIX. A. Opinion Confined to Special Question. 

B. Minority Report Permitted Page 179 

CXXI. A. Proceedings May be Used to Impeach Witness. 
CXXn. A. Marine Corps Officers Require. President's Order to Assume 
Command in the Army. 
B. At Joint Maneuvers Militia Officers can not Assume Command 
OP Regular Officers. 
CXXVI. A. Company Commander May Convert Effects of Deceased Soldier 

into Cash Page 180 

CXXVn. A. Upon Accounting to Representative, Responsibility Ends. 
B. Legal Representative Defined. 



Ill A. Held, that the words ' ' infamous criminal offense ' ' used in the 
third article of war mean an offense punishable by imprisonment in a 
penitentiary or by death. C. 9490, Dec. 9, 1911. 

VIII A. This article does not refer to funds. ^ R. 30, 698, Aug., 
1870; 32, 575, May, 1872; 33, 188, July, 1872; 38, 526, Mar., 1877. 

XVII A. The description, ''his clothing," refers to articles thereof 
which are regularly issued to the soldier for his use in the service and 
with the safe-keeping of which he is charged. His property in them is 
qualified by the trust that he can not dispose of them while he is in the 
military service, and can only use them for military purposes. ^ P. 
59, 196, Apr., 1893; C. 16107, Apr. 2, 1904. 

XVII B. Only three offences are made punishable by this article — 
selling, through neglect losing, and through neglect spoiling, the 
property named therein. Any other form of wrongful disposition 
should be made the subject of a charge under article 60 or article 62. 
P. 26, 238, Aug., 1888; C. 17442, Jan. 23, 1905. 

XVII C. This article is quite independent of the Army Regula- 
tions, relating to surveys of property. The surveying officer passes 
upon questions of pecuniary responsibility for the loss, &c., of pubhc 
property. The court-martial, under this article, simply imposes 
punishment.^ R. '37,352, Feb. 28, 1876; P. 59, 196, Apr. 28, 1893. 

XIX A. When a trial of an officer or soldier has been resorted to 
under this article, it has usually been on account of the use of "con- 



Article. 

122. Command when different corps hap- 

pen to join. 

123. Regular and volunteer officers on 

same footing as to rank, etc. 

124. Rank of militia officers on duty 

with officer of regular or volun- 
teer forces. 



Article. 

125. Deceased officers' effects. 

126. Deceased soldiers' effects. 

127. Effects of deceased officers and sol- 

diers to be accounted for. 

128. Articles of War to be published once 

in six months to every regiment, 
etc. 



* See, as sustaining the text, G. C. M. O. 12, 19, War Department, 1872, and 36, of 
1877. 

2 See ruling of reviewing officer in G. O. 35, Dept. of the East, 1869; and see also do. 
31, Dept. of the South, 1877; G. C. M. O. 15, Dept. of Texas, 1880; all sustain the text. 
Clothing issued in kind does not become private property. (See Clothing allowance 
under Pay and allowances.) 

^ Where a trial is had, the proceedings of a board of survey, aheady ordered in the 
same case, will not be competent evidence to prove the fact of the loss, &c., charged. 
G. C. M. O. 45, Dept. of the Missouri, 1877; do. 15, Dept. of Texas, 1877. 



AETICLES OP WAR XXT A. 121 

temptuous or disrespectful words against the President," or the 
Government mainly as represented by the President. The delib- 
erate employment of denunciatory or contumelious language in 
regard to the President, whether spoken in public, or published, or 
conveyed in a communication designed to be matle public, has, in 
repeated cases, been made the subject of charges and trial under 
this article; ^ and, where taking the form of a hostile arraignment, 
by an officer, of the President or his administration, for the measures 
adopted in carrying on the Civil War — a juncture when a peculiar 
obedience and deference were due, on the part of the subordinate, 
to the President as executive and commander in chief — was in 
general punished by a sentence of dismissal. R. 5, 4^1, Dec, 1863; 
20, 516, Apr., 1866. On the other hand, it was held that adverse 
criticisms of the acts of the President, occurring in 'political discus- 
sions, and which, though characterized by intemperate language, 
were not apparently intended to be disrespectful to the President 
personally -or to his office, or to excite animosity against him, were 
not in general to be regarded as properly exposing officers or soldiers 
to trial under tliis article. To seek indeed for ground of oflPencein 
such discussions would ordinarily be inquisitorial and beneath the 
dignity of the Government. R. 5, 491, Dec, 1863. 

XXI A. The "superior officer" in the sense of this article, need not 
necessarily have been the commanding officer of the accused at the 
time of the offence. The article is thus broader than article 20, 
which relates only to an offence against a "commanding officer." 
R. 19, 248, Dec, 1865. 

XXI B. The offence of disobedience of orders contemplated by 
this article, consists in a willful refusal or neglect to comply with a 
specific order to do or not to do a particular thing. A mere failure 
to perform a routine duty is properly charged under article 62. ^ 
R. 33, 280, Aug., 1872. Wliere an officer neglected fully to perform 
his duty under general instructions given liim in regard to tne con- 
duct of an expedition against Indians; Jield that his offence was 
properly chargeable not under the twenty-first but under the sixty- 
second article. R. 38, 454, Feb., 1877; C. 16150, Apr. 6, 1904; 
20968, Jan. 18, 1907; 2885, Nov. 11, 1909. 

XXI B 1. Held that the refusal by a soldier to pay a debt legally 
contracted with the company tailor, soldier, or civilian is a violation 
of the twenty-first article of war.^ P. 33, 22, June 10, 1889* 

XXI B 2, Held, that the refusal of a soldier, when properly de- 
tailed for that duty, to cook for a mess of civiHan teamsters who were 
regular employees of the military establishment and a constituent 
part of the command, was a violation of the twenty-first article of 
war. P. 28, '342, Dec 3, 1888. 

XXI C 1 a. iELeld, that the refusal of a commissioned officer to si^n 
a certificate, as the facts set forth in such certificate were not within 

1 See ?ase8 in G. C. M. 0. 43, War Dept., 1863; G. 0. 171, Army of the Potomac, 
1862; do. 23, id., 1863; do. 52, Middle Dept., 1863; do. 119, Dept. of the Ohio, 1863; 
do. 33, Dept. of the Gulf, 1863; do. 68,« Dept. of Washington, 1864; do. 86, Northern 
Dept., 1864; do. 1, id., 1865; do. 29, Dept. of N. C, 1865. 

2 See G. C. M. O; 26, War Dept., 1872; do. 7, Dept. of Texas, 1874; G. O. 24, 35, 
Fifth Mil. Dist., 1868. 

3 See sec. 1220, R. S., and act of Mar. 2, 1889 (25 Stat., 831). See also Circular 
8, A. G. O., 1896, which by construction extends the regulation to include civilian 
tailors. 



122 ARTICLES OP WAR XXI C 2 a. 

his knowledge, was not a violation of the twenty-first article of war. 
R. 49, 221^, July 18, 1885. 

XXI C 2 a. Held, that the refusal of a sokUer to comply with an 
order to act as an officer's servant is not a violation of the twenty- 
first article of war.^ R. U, 80, July 21 , 1880; C. 22404, Nov. 25, 1907. 

XXI C 2 b. Held, that the refusal of a soldier to contract marriage 
when ordered to do so was not a violation of the twenty-first article 
of war. R. 38, 47, Apr. 13, 1876. 

XXI C 2 c. Held, that the refusal by a member of a post band to 
obey an order of a post commander to play in a neighboring town for 
the pleasure of the inhabitants was not a violation of the twenty-first 
article of war. R. 27, 520, Feb. 6, 1869.^ 

XXI C 2 d. A soldier refused to submit to the prophylactic treat- 
ment required by War Department orders ^ as a preventative against 
typhoid fever, declaring that he is in a healthy condition physically 
and that it is his rehgious belief that the body under such conditions 
should not be tampered with. Held, that cases of this character are 
peculiar in that they affect the person of the soldier and are somewhat 
out of the Une of regular military service in which unquestioning 
obedience is essential, and the infliction of punishment in such cases 
would be regarded differently than if it were infficted for a violation 
of orders directly pertaining to the miUtary service. Suggested that 
the soldier's request to be permitted to purchase his discharge rather 
than submit to the prophylactic treatment be approved. C. 11753, 
Jan. 26, 1912. In the meantime the soldier had been tried, con- 
victed, and sentenced to dishonorable discharge, forfeiture, and con- 
finement for six months. The soldier upon being informed that his 
application for purchase of discharge would be approved declined to 
make such application. Under the new conditions presented it was 
recommended that the soldier be discharged without honor. C. 11753, 
Feb. 9, 1912. 

XXI D. When a soldier receives an order of doubtful legality, it 
is his duty to obey it and seek redress afterwards. Held, that if he 
elects in such a case to disobey the order in the first instance his 
action is an offense under the sixty-second article of war. Thus, in 
a particular case where an ilhterate soldier who was unable to sign 
his name was furnished with a written exhibit of his name and 
ordered to continue to copy the same until he could reproduce it, 
and he* refused, his refusal was an offense under the sixty-second 
article of war. P. 27, 484, Nov., 1888; C. 9709, June 26, 1901. 

XXI E 1. Where a soldier kills his superior officer on a military 
reservation over which jurisdiction has been ceded to the United 
States, held that he may be tried for murder in the proper Federal 
criminal court, or for manslaughter under the sixty-second article of 
war, and for shooting his superior officer in violation of the twenty- 
first article of war. C. 25267, July 13, 1909. 

XXI E 2. Held that the fact that capital sentences have been 
imposed and executed in time of war for a violation of the twenty- 

' See section 1232, R. S., which forbids officers to use an enlisted man as a servant 
in any case whatever. See G. C. M. O. 130, Department of Dakota, 1879, which pub- 
hshes the proceedings of a trial in which a soldier was convicted of disobedience of 
orders in refusing to assist in building a private stable for an officer, and the finding 
was disapproved on the ground that such an order was not lawful. 

'^ See G. O. No. 134, War Department, 1911. 



ARTICLES OF WAR XXII A. 123 

first article does not operate to deprive a court-martial of power to 
impose an adequate punishment in a case in which an offense com- 
mitted in violation of the article in time of peace is sufficiently aggra- 
vated in character to warrant the imposition of a capital sentence, 
and that in the case in reference (the willful killing of a superior officer 
by a noncommissioned officer) the circumstances attending the offense 
were such as to warrant the imposition of a capital sentence and the 
recommendation that the sentence imposed be confirmed and carried 
into execution.! C. 21568, May 1, 1907. 

XXII A. Mutiny at military law may be defined to be an unlawful 
opposing or resisting of lawful military authority, with intent to sub- 
vert the same, or to nullify or neutrahze it for the time.^ It is tliis 
intent wliich distinguishes mutiny from other ofTenses, and especially 
from those, with which, to the embarrassment of the student, it has 
frequently been confused, viz, those punishable by the twenty-first 
article, as also those which, under the name of "mutinous conduct," 
are merely forms of violation of article 62. The oft'enses made pun- 
ishable by article 22 are not necessarily ''aggregate " or joint offenses.^ 
P. 26, 284, Sept., 1887. Among them is the beginning or causing of a 
mutiny — which may be committed by a single person. In general, 
however, the offense here charged will be a concerted proceeding ; the 
concert itself going far to estabhsh the intent necessary to the legal 
crime. To charge as a capital offense under this article a mere act 
of insubordination or disorderly conduct on the part of an individual 
soldier or officer, unaccompanied by the intent above indicated, is 
irregular and improper.* Such an act should in general be charged 
under articles 20, 21, or 62. R. 29, 571, Jan., 1870; 38, 199, July, 
1876. 

XXII B. Soldiers can not properly be charged with the offense of 
joining in a mutiny under this article, where their act consists in 
refusing, in combination, to comply with an unlawful order. Thus 
where a detachment of volunteer soldiers, who, under and by virtue 
of acts of Congress specially authorizing the enlistment of volunteers 
for the purpose of the suppression of the rebellion, and with the full 
understanding on their part, and that of the officers by whom they 
were mustered into the service, that they were to be employed solely 
for tliis purpose, entered into enhstments expressed in terms to be 
for the war, and after doing faithful service during the war, and just 
before the legal end of the war, but when it was practically termi- 
nated, and when the volunteer organizations were being mustered 
out as no longer required for the prosecution of the war, were ordered 
to march to the plains and to a region far distant from the theater 
of the late war and engage in fighting Indians, whoUy unconnected 

• The soldier was executed July 27, 1907. 

2 Compare the definition and description of mutiny or revolt at maritime law, in 
the United States v. Smith, 1 Mason, 147; United States v. Haines, 5 id., 272, 276; 
United States v. Kelly, 4 Wash., 528; United States v. Thompson, 1 Sumner, 168, 171; 
United States v. Borden, 1 Sprague, 374, 376. 

3 Samuel, 254, 257; G. O. 77, War Dept., 1837; do. 10, Dept. of the Missouri, 1863. 

* See G. O. 7, War Dept., 1848; do. 115, Dept. of Washington, 1865; G. C. M. O. 73, 
Dept. of the Missom-i, 1873. And compare United States v. Smith, 1 Mason, 147; 
United States v. Kelly, 4 Wash., 528; United States v. Thompson, 1 Sumner, 168, 171. 



124 ARTICLES OF WAR XXIV A. 

as allies or otherwise with the recent enemy, and thereupon refused, 
together, to comply with such orders, held that they were not charge- 
able with mutiny. While by the strict letter of their contracts they 
were subject to be employed upon any military service up to the last 
day of their terms of enlistment, the public acts and history of the 
time made it perfectly clear that this enlistment was entered into for 
the particular purpose and in contemplation of the particular service 
above indicated, and to treat the parties as bound to another and 
distinct service, and liable to capital punishment if they refused to 
perform it, was technical, unjust, and in substance illegal. R. 4^, 
524, Mar., 1880. 

XXIV A. See footnote.^ 

XXV A. Article 25 confers no jurisdiction or power to punish on 
courts-martial, but merely authorizes the taking of certain measures 
of 'prevention and restraint by commanding officers; i. e., measures 

{)reventive of serious disorders such as are indicated in the two fol- 
owing articles relating to duels. R. 28, 650, June, 1869. 

XXVI A. To establish that a challenge was sent, there must appear 
to have been communicated by one party to the other a deliberate 
invitation in terms or in substance to engage in a personal combat 
with deadly weapons, with a view of obtaining satisfaction for 
wounded honor.' The expression merely of a willingness to fight, or 
the use simply of language of hostility or defiance, will not amount to 
a challenge. On the other hand, though the language employed be 
couched in ambiguous terms, with a view to the evasion of the legal 
consequences, yet if the intention to invite to a duel is reasonably to 
be implied — and, ordinarily, notwithstanding the stilted and obscure 
verbiage employed this intent is quite transparent — a challenge will 
be deemed to have been given. And the intention of the message 
where doubtful upon its face, may be illustrated in evidence by proof 
of the circumstances under which it was sent, and especially of the 
previous relations of the parties, the contents of other communica- 
tions between them on the same subject, etc.^ And technical words 

*^ It is a principle of the common law that any bystander may and should arrest an 
affrayer. 1 Hawkins, P. C, c. 63, s. 11; Timothy v. Simpson, 1 C. M. & R., 762, 765; 
Phillips V. Trull, 11 Johns, 486,487. And that an officer or soldier, by entering the 
military service, does not cease to be a citizen, and as a citizen is authorized and 
bound to put a stop to a breach of the peace committed in his presence, has been 
specifically held by the authorities. Burdette-y. Abbott, 4 Taunt., 449; Bowyer, Com. 
on Const. L. of Eng. , 449 ; Simmons sees. 1096-1100. This article is thus an application 
of an established common law doctrine to the relations of the military service. See 
its application illustrated in the following General Orders: G. O. 4, War Dept., 1843; 
do. 63, Dept. of the Tennessee, 1863; do. 104, Dept. of the Missouri, 1863; do. 52, 
Dept. of the South, 1871; do. 92, id., 1872. 

2 Compare the definition in 2 Wharton, Cr. L. sees. 2674-2679. 

3 On the general subject of challenges, and the question what constitutes a^ chal- 
lenge, see the principal cases of the sending of challenges in our service, as published 
in G. O. 64, A. G. 0., 1827; do, 39, 41, %d., 1835; do. 2, War Dept., 1858; do. 330, 
U., 1863; do. 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1863; do. 223, 
Dept. of the Missouri, 1864; do. 130, id., 1872; do, 33, Dept. & Army of the Tennessee, 
1864. And compare Commonwealth v. Levy, 2 Wheeler, Cr. C. 245; do. v. Tibbs, 
1 Dana, 524; do. v. Hart, 6 J. J. Marsh, 119; State v. Taylor, 1 S. C, 108; do. v. Strick- 
land, 2 Nott & McCord, 181; Ivey v. State, 12 Ala., 277; Anlger v. People, 34 Ills., 
486; 2 Bishop, Cr. L., sec. 314; Samuel, 384-387. ' 



AETICLES OF WAR XXIX A. 125 

in an alleged challenge may be explained by a reference to the so- 
called dueling code.^ R. 39, 2^7, Oct., 1877. 

XXIX A, The twenty-ninth article of war is expressly limited in 
its terms to wrongs alleged to have been committed by regimental 
commanders, and does not apply to other commanding officers. 
R, 55, 365, Mar, 22, 1888; C. 18317, July 19, 1905; 18387, Aug. 4, 
1905; 18415, Aug. 11, 1905; 23840, Sept. 10, 1908; 24632, Apr. 21, 
1909. 

XXIX B. Held that when, in the course of his duty, a regimental 
commander reports facts on an officer's efficiency report, the officer 
is not wronged in the sense of the twenty-ninth article of war, unless 
it is clearly shown that the report by the regimental commander was 
malicious and was not dictated by a true sense of duty. C. 23840, 
Sept. 16 and 26, 1908, and Oct. 6, 1909. 

XXX A. This article is not inconsistent with article 83, which pro- 
hibits regimental courts from trying commissioned officers. It does 
not contemplate or provide for a trial of an officer as an accused, but 
simply an investigation and adjustment of some matter in dispute — 
as, for example, a' question of accountabiUty for public property, of 
right to pay, or to an allowance, of rehef from a stoppage, etc. The 
regimental court does not really act as a court but as a board, and the 
"appeal" authorized is practically from one board to another.^ But 
though the regimental court has no power to find ''guilty" or "not 
guilty," or to sentence, it should come to some definite opinion or 
conclusion — one sufficiently specific to allow of its being intelhgently 
reviewed by the general court if desired. R. 23, 631, July, 1867; 28, 
113, Aug., 1868; 29, 227, Aug., 1869; 30, 81, Feh., 1870; 32, 588, 
May, 1872; C. 25975, Dec. 27, 1909; 24632, Mar. 16, 1909. 

XXX B. The proceeding under this article, not being a trial, is not 
affected by the limitation of the one hundred and third article. Due 
diUgence, however, should be exercised in presenting the complaint, 
and a delay in a certain case to do so for three years (not satisfac- 
torily explained), held unreasonable and properly treated by the court 
as seriously prejudicing the complaint. R. 31, 4^2, June, 1871. 

XXX C. The authority to summon a regimental court under this 
article is vested in terms in the regimental commander. A depart- 
ment or other superior commander can not properly exercise such 
authority, nor will his order add to the vahdity or effect of the pro- 
ceeding. R. 29, 227, Aug., 1869. 

XXX p. There are two manifest and unqualified limitations to 
the province of the regimental court under this article, viz: (1) It 
can not usurp the place of a court of inquiry; (2) It can take no 
cognizance of matters which it would be beyond the power of the 
regimental commander to redress. When the matter is beyond the 
reach of this commander, it is beyond the jurisdiction of this court. 
If it involve a question of irregular details, excessive work or duty, 

' State V. Gibbons, 1 South., 51. It may be noted that our Articles of War, unlike 
the British, fail to make punishable, as a specific military offence, the engaging in a 
duel. Such an act, therefore, would, as such, be in general chargeable only under 
Art. oZ. 

2 See Macoml>, sees. 193. 194; G. O. 13, War Dept., 1843; 1 Op. Atty. Gen., 167; 
McNaughton's Annotations of the Mutiny Act, p. 86; O'Brien, pp. 123-129. 



126 AKTICLES OF WAE XXX E. 

wrongful stoppages of pay, or the like, a regimental court under 
this article may be resorted to for the correction of the wrong. Other- 
wise when the case is one of a wrong such as can be righted only by 
the punishment of the officer.^ P. 43, 37, ^79, Sept. and Nov., 1890; 
47, 214, May, 1891; C. 855, Jan., 1895. 

XXX E. The right to complain which is vested in enlisted men 
in the operation of the thirty-eighth article of war is a right con- 
ferred by statute, and its exercise can not be prejudiced by require- 
ments of regulations. C. 24632, Mar. 15, 1909. 

XXXII A. An unauthorized absence from the quarters only, as 
from 11 p. m. inspection, held not properly chargeable under the 
thirty-second article. This article contemplates an absence from 
the soldier's "troop, battery, company, or detachment"— an absence 
from the ])ost or command. P. 47,' 133, May, 1891; 49, 100, 171, 
Sept., 1891. • 

Violations of the tliirty-third article of war only should not be 
charged as absence without leave under the thirty-second article. 
C. 2838, Dec, 1896; 18508, Sept. 6, 1905. 

XXXII B. A soldier who, while absent without leave, fails to 
repair to the place of parade, etc., may be charged with an offense 
under both the thirty-second and thirty-third articles of war. C. 
18508, Sept. 6, 1905; 3694, June 11, 1910. 

^ The "regimental court-martial," under the thirtieth article of war, can not be used 
as a substitute for a general court-martial or court of inquiry, for it can not try an 
officer nor make an investigation for the purpose of determining whether he shall be 
brought to trial. When, if the soldier's complaint should be sustained, the only redress 
would be a reprimand to the officer, the matter would not be within the jurisdiction 
of this court. It can only investigate such matters as are susceptible of redress by the 
doing of justice to the complainant; that is, when in some way he can be set right 
by putting a stop to the wrongful condition which the officer has caused to exist. 
Erroneous stoppages of pay, irregularity of detail, the apparent requirement of more 
labor than from other soldiers, and the like, might in this way be investigated and 
the. wrongful condition put an end to. The court will in such cases record the evi- 
dence and its conclusions of fact, and recommend the action to be taken. The mem- 
bers of the court (and the judge advocate) will be sworn faithfully to perform their 
duties as members (and judge advocate) of the court, and the proceedings will be 
recorded, as nearly as practicable, in the same manner as the proceedings of ordinary 
courts-martial. Manual for Courts-Martial (1908), page 108, note. 

An early instance of an appeal under this article is published in Orders No. 5, 
A. G. 0., January 20, 1827, as follows: 

"I: Under the 35th [now 30th] Article of War, the commanding officer at For- 
tress Monroe, on the 17th of November, 1826, assembled a regimental court-martial to 

examine into a complaint made by Musician R B against Lieutenant 

M— — — , of the 2d Artillery, and to do justice to the complainant." The court pro- 
nounced the following opinion: 

"The court having heard and deliberately weighed the evidence in the case before 

them, and also Lieutenant M 's statement, are of the opinion that the accusation 

is not fully sustained. * * * In expressing this opinion the court do not find the 

occasion warranted the language made use of by Lieutenant M to the accuser, 

and the band in general." 

Considering himself aggrieved by this "opinion," Lieutenant M "appealed 

to a general court-martial." 

The court of which Lieutenant Colonel E was president, having been in- 
structed to take cognizance of the case, made the following "decision:" 

"The court having reexamined all the witnesses who appeared before the regimental 
court-martial, and having examined such other additional witnesses as were produced 
by the parties, * * * confirm the opinion expressed by the regimental court- 
martial with the exception of the closing words, to wit, 'and the band in general.'" 

This decision was "confirmed" by the Major General Commanding the Army. 



ARTICLES OF WAR XXXII C. 127 

XXXII C. Where a soldier absents himself without leave for a 
definite period, with the apparent purpose of evading an announced 
six days' practice march, TieM that he may be charged with a violation 
of article 32, and, in addition, with a violation of the sixty-second 
article of war for his attempt to evade the practice march. C. 369A, 
Apr. 24, 1908. 

XXXVIII A. It is immaterial whether the drunkenness be volun- 
tarily induced by spirituous liquor or by opium or other intoxicating 
drug; in either case the offense may be equally complete."^ R. 38, 
409] Jan., 1877. 

XXXVIII B 1. A post commander, while present and exercising 
command as such, is deemed to be at all times on duty in the sense 
of this article, and thus liable to a charge under the same if found 
drunk at post.^ R. 26, 486, Mar., 1868; 38, 306, Sept., 1876; C. 10600, 
June 1, 1901. 

XXXVIII B 2. A medical officer of a post, where there are con- 
stantly sick persons under his charoje who may at any moment 
require his attendance, may, generally speaking, be deemed to be 
"on duty" in the sense of the article during the whole day and 
not merely during the hours regularly occupied by sick call, visiting 
the sick, or attending hospital. If found drunk at any other hour 
he may in general be charged with an offense under this article. 
R. 37, 116, Nov., 1875. 

XXXVIII B 3. An officer reporting in person drunk, upon his 
arrival at a post, to the commander of which he had been ordered 
to report, held chargeable under this article. And so held of an 
officer reporting, when drunk, to the post com^piander for orders, as 
officer of the day, after having been duly detailed as such.^ R. 37, 
152, Nov., 1875. 

XXXVIII B 3 a. When an officer or soldier is found drunk at 
the time when he is required to enter upon a duty, held that he is 
not "drunk on duty" unless he shall be permitted to enter the duty. 
C. 15376, Apr. 23, 1910. 

XXXVIII C 1. Held that a soldier found drunk when on duty 
was properly convicted under this article, though his drunkenness 
actually commenced before he went on the duty; his condition not 
being perceived till some time after he had entered upon the same. 
While it is in itself an offense knowingly to allow a soldier to go 
on dut}r when under the influence of intoxicating liquor, yet if a 
soldier is placed on duty while partially under this influence but 
without the fact being detected, and his drunkenness continues and 
is discovered whfle he remains upon the duty, he is strictly amenable 
under this article, which prescribes not that the party shall hecome 

' Simmons, sec. 157. And see Hough (Precedents), 208; James's Precedents, 60. 

^ That the article is not limited in its application to mere duties of detail, but 
embraces all descriptions and occasions of duty, see the interpretation of the same 
as declared in G. O. 7, War Dept., 1856, and affirmed in G. O. 5, id., 1857. The 
case in the latter order, indeed, was a case of drunkenness while on duty as a post 
commander. See another case of the same character in G. C. M. O. 21, Dept. of 
the Missouri, 1870, and the remarks of Mai. Gen. Schofield thereon, and compare 
G. C. M. O. 9, War Dept., 1875. 

^ See G. O. 104, Headquarters of the Army, 1877. 



128 ARTICLES OF WAE XXXIX A. 

drunk, but that he shall be ''found drunk" on duty.^ R. 31, 324, 
Apr., 1871; C. 15376, Oct. 13, 1903; 259Ifi, Jan. 15, 1910. 

XXXIX A. Held that a sentinel is on post within the meaning 
of the thirty-ninth article of war when he is walking a duly desig- 
nated sentinel's post, as is ordinarily the case in garrison, but that 
he is also on post when he may be stationed in observation against 
the approach of an enemy, or on post to maintain internal discipline, 
or to guard stores, or to guard prisoners while in confinement or at 
work. 0.20325, Sept. 7, 1906. 

XL A. Any unauthorized absence from the place of a guard by a 
member of the guard may properly be tried under the fortieth article 
of war. 0. 15991, Mar. 2, 1904; ^21530, May 4, 1907. 

XLII A, Misbehavior before the enemy may be exhibited in the 
form of cowardice, or it may consist of a willful violation of orders, 
gross negligence or inefficiency, an act of treason or treachery, etc.^ 
It need not be committed in the actual sight of the enemy, but the 
enemy must be in the neighborhood, and the act of offense have rela- 
tion to some movement or service directed against the enemy, or 
growing out of a movement or operation on his part. It may be 
committed in an Indian war equally as in a foreign or civil war.^ 
R. 6, 79, Apr., 1864; H, ^74, Dec, 1864; 42, 546, Mar. 1880. 

XLII B. The term "his arms or ammunition" does not refer to 
arms, etc., which are the personal property of a soldier, but means 
such as have been furnished to him by the proper officer for use in 
the service.* The term is to be construed in connection with the fur- 
ther similar expression, ''his post or colors." R. 6, 79, Apr., 1864- 

XLV A. In view of the general term of description in this and the 
succeeding article — "Whosoever," it was lield, during the war of the 
rebellion, by the Judge Advocate General and by the Secretary of 
War,^ and has been held later by the Attorney General," that civilians, 
equally with military persons, were amenable to trial and punishment 
by court-martial under either article.'^ R. 2, 498, June, 1863; 5, 291, 
Nov., 1863; 11, 215, 454, Dec, 1864, and Feb., 1865. 

1 See cases in G. O. 11, Dept. of Louisiana, 1869; G. C. M. O., 113, Dept. of the 
Missouri, 1873. 

^ The phases which this offense may assume are well illustrated in cases published 
in the following General Orders: G. O. 5, War Dept., 1857; do. 183 id., 1862; do. 18, 
134, 146, 189, 204, 229, 282, 317, id., 1863; do. 27, 64, id., 1864; G. C. M. O. 90, 114, 272, 
279, id., 1864; do. 53, 91, 107, 124, 126, 134, 191, 421, id., 1865. 

^ See case in G. O. 5, War Dept., 1857, in which a soldier was sentenced to be hung 
upon conviction of misbehavior before the enemy on the occasion of a fight with 
Indians . 

* See Samuel, 592; Hough (Practice), 336. 

^See G. 0. 67, War Dept., 1861; also the following orders of that department pub- 
lishing and approving sentences of civilians tried and convicted under these articles: 
G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. 0. 106, 157, of 1864; do. 260, 
671, of 1865. 

6 13 Op. Atty. Gen., 470, 472. 

^ Admitting this construction to be warranted so far as relates to acts committed on 
the theater of war or within a district under martial law, it is to be noted that it is the 
effect of the leading adjudged cases to preclude the exercise of the military jurisdiction 
over this class of offenses, when committed by civilians in places not under military 
government or martial law. (See, especially. Ex parte Milligan, 4 Wallace, 2, 121-123; 
Jones V. Seward, 40 Barb., 563; also .other cases cited in note.) 

But the sounder construction is believed to be that, as the Articles of War are a code 
enacted for the government of the military establishment, they relate only to persons 
belonging to that establishment, unless a different intent should be expressed or other- 



ABTICLES OF WAR XLV B. 129 

XLV B. During the War of the Rebellion all inhabitants of insur- 
rectionary States were prima facie enemies in the sense of this and 
the succeeding article.^ R. I4, 266, Mar., 1865. A citizen of an 
insurgent State who entered the United States military service became 
of course no longer an enemy. So held of a lieutenant of the First 
East Tennessee Cavalry. R. 29, 206, Aug. 1869. 

XLV C. It is no less a relieving an enemy under this article that the 
money, etc., furnished is exchanged for some commodity, as cotton, 
valuable to the other party. R. 12, 385, Mar., 1865; 1%, 266, Mar., 
1865; 16, U6, Aug., 1865. ^ 

XLV C 1. The act of "relieving the enemy" contemplated by this 
article is distinguished from that of trading with the enemy in viola- 
tion of the laws of war; the former being restricted to certain particu- 
lar forms of relief, while the latter includes every kind of commercial 
intercourse not expressly authorized by the Government. R. 1^, 
266, Mar., 1865. (See War.) 

XL VI A. Held that the offense of holding correspondence with the 
enemy was completed by writing and putting in progress a letter to 
an inhabitant of an insurrectionary State during the War of the 
Rebellion; it not being deemed essential to this offense that the letter 
should reach its destination.^ R. 4, 870; 5, 274 <^^ 291, Nov., 
1863; 10, 567, Nov., 186 4. 

XL VI B. It is essential, however, to the offense of giving intelli- 
gence to the enemy that material information should actually be com- 
municated to him; the communication may be verbal, in writing, or 
by signals. R. I4, 273, Mar., 1865. 

XLVIII A. Held that when a deserter is returned to duty with- 
out trial there is an implied admission on his part of the desertion. 
This admission establishes the desertion and entaUs the requirement 
in the forty-eighth article of war that he shall make good the time 
lost in desertion.3 R. 53, 276, Apr., 1887, P. 26, 487, Sept., 1888; 
C. 16306, Apr. 11, 1908; I68I4, Sept. 3, 1904 and Nov. 13, 1906; 
20690, Nov. 28, 1906; 21117, Feb. 15, 1907. 

wise made manifest. No such intent is so expressed or made manifest. Persons not 
belonging to the military establishment may be proceeded against for the acts men- 
tioned in the article, but it is by virtue of the power of another jurisdiction, namely, 
' martial law; and martial law does not owe its existence to legislation but to necessity. 
The scope of these articles under the legislation of 1776, apparently extending their 
application to civilians, seems to have become modified on the adoption of the Con- 
stitution. 

Possibly the sixty- third article of war should be construed as making "retainers to 
the camp," etc., part of the military forces for the time being. But see the case of 
B. G. Harris, M. C., tried by court-martial in 1865. (H. Ex. Doc. 14, 39th Cong., Ist 
sess.) 

1 See the opinion of the United States Supreme Court (frequently since reiterated, 
in substance), as given by Grier, J., in the "Prize Cases," 2 Black, 635, 666 (1862); 
and by Chase, C. J., in the cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace, 
258, 274, 418 (1864). In the latter case the Chief Justice observes: "The rule which 
declares that war makes all the citizens or subjects of one belligerent enemies of the 
Government and of all the citizens or subjects of the other, applies equallv to civil 
and to international wars." That an insurrectionary State was no less 'enemy's 
country," though in the military occupation of the United States, with a military 
governor appointed by the President. (See Opinion by Field, J., in Coleman v. Ten- 
nessee, 7 Otto, 509, 516, 517.) 

2 O'Brien, 147; Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel, 
580. 

3 26 Op. Atty. Gen., 239. 

93673°— 17 9 



130 ARTICLES OF WAR XLVIII B. 

XLVIII B. The United States may waive the liability imposed by 
the first clause of the article. It is in fact waived where the deserter, 
without being required to perform the service, is discharged by one 
of the officials authorized by article 4 to discharge soldiers. So it is 
waived where the soldier is adjudged to be dishonorably discharged 
by sentence of court-martial, and this punishment is duly approved 
and thereupon executed. R. 29, 507, Dec, 1869; 30, 606, July, 1870; 
37, 4^6, Mar., 1876. Nor does a deserter who has been duly dis- 
charged from the service remain amenable to trial under the last 
clause of tliis article. R. 31, 48, Nov., 1870. 

XLVIII C 1. Held that following a conviction by court-martial 
for desertion, where the sentence does not include discharge, the 
requirement to make good time lost becomes operative by its own 
force. C. 16814, Nov. 13, arid Dec. 4, 1906. 

XLVIII C 2. The liability to make good to the United States the 
time lost by desertion, enjoined by the first clause of this article, is 
independent of any punishment which may be imposed by a court- 
martial, on conviction of the offense. It need not, therefore, be 
adjudged or mentioned in terms in a sentence.^ R. 60, 413, June, 
1886. If the sentence is disapproved, the legal status of the accused 
is the same as if he had been acquitted, and the obligation of addi- 
tional service is not incurred. R. 26, 668, June, 1868. 

XLVIII C 3. The enforcement of the liability is postponed till 
after the execution of the punishment (if any) imposed upon the 
deserter by his sentence. A deserter may still be required to make 
good the time included in his unauthorized absence from the service, 
although his -term of enlistment has expired. R. 32, 40, Oct., 1871; 
C. 18492, Aug. 31, 1906. 

XLVIII C 4. As the disapproval of a conviction operates as an 
acquittal, held that a soldier whose conviction of desertion has been 
disapproved by the reviewing authority can not be required to make 
good time lost in desertion under the forty-eighth article of war.^ 
C. 16814, Apr. 11, 1907; 18438, June^ 26, 1908, and Aug. 3, 1910. 

XLVIII D. The weight *of authorities is in support of the view that 
the provision in the forty-eighth article of war to the effect that a 
deserter must make good time lost in desertion is penal in character. 
Held that if the soldier is acquitted of desertion the liabfiity to make 
good the time lost is-wiped out. C. 16814, Dec. 4, 1906. 

XLVIII E. Held that the requirement in the forty-eighth article 
of war that a deserter shall be liable to serve such period as shall 
with the time he may have served previous to his desertion amount 
to the full time of his enlistment, requires military service, and excludes 
from the computation time spent while awaiting trial or serving sen- 
tence. The deserter, therefore, does not begin to serve the unexe- 
cuted portion of his enlistment until he has completed his sentence. 
R. 30, 606, July 16, 1870; '31, 275, 374, Mar. 31, and May 10, 1871. 
1F93 F, Nov. 23, 1906: 16306, Apr. 10, 1898; 16423, June 4, 1904; 
17937, May 4, 1905; 21037, Feb. 21, 1907; 21536, May 9, 1907. 

XLVIII F. Held that the liabihty to trial and punishment imposed 
by the second clause of the forty-eighth article of war is subject to 

1 See G. O. 21, Dept. of the Lakes, 1873; do. 94, Dept. of the Missouri, 1867; G. C. M. 
O. 74, Dept. of the East, 1873. The old ruling contra (see G. O. 26, 45, Hdqrs. of 
Army, 1843) may be regarded as abandoned in our law and practice. 

2 26 Op. Atty. Gen., 239. 



ARTICLES OF WAR L A. 131 

the limitation of prosecutions prescribed in the one hundred and 
third article of war. R. 31, 384, May, 1871; C. 15257, Sept. 18, 1903; 
and May 3, 1910. Held further that the liability to make good time 
lost in desertion continues even though the statute of limitation has 
taken effect or has been successfully pleaded in bar as to the desertion. 
R. 37, 416, Mar., 1876; P. 48 a7id^69. Mar., 1890. 

I A. This article, in its first clause, does not create a specific 
offense, or a particular kind of desertion, or an offense distinct from 
the desertion made punishable in the forty-seventh article, but 
declares in effect that a soldier who abandons his regiment, etc., 
shall be deemed none the less a deserter, although he may forthwith 
reenlist in a new regiment. It does not render the act of reenhst- 
ment a desertion, but simply makes the reenhstment, under the cir- 
cumstances indicated, prima facie evidence of a desertion from the 
previous enhstment from wliich the soldier has not been discliarged, 
or, more accurately, evidence of an intent not to return to the same.^ 
The object of the provision, as it originally appears in the British 
Code, apparently was to preclude the notion that might otherwise 
have been entertained that a soldier would be excused from repudi- 
ating or departing from his original contract of enlistment, provided 
he presently renewed his obUgation in a different portion of the 
mihtary force." R. 42, 642, May, 1880; P. 7, 298, Sept., 1885; 10, 4, 
May, 1886; 49, 442, Oct., 1891; C. 355, Sept., 1894; 902, Feb., 1895; 
1571, July, 1895; 1624, Aug. 12, 1895; 2827, Dec. 31, 1899; 18801, 
Nov. 4, 1905; 21422, Apr. 23, 1907; 23644, Jan. 23, 1909; 24722, 
Apr. 5, 1909. 

II A. A declaration made by one soldier to another of a wiUingness 
to desert with him in case he should decide to desert, lield not properly 
an advising to desert, in the sense of this article. To constitute the 
offense of advising to desert, it is not essential that there should have 
been an actual desertion by the party advised. But otherwise as to 
the offense of persuading to desert; to complete this offense the persua- 
sion should have induced the act.^ R. 39, 407, Jan., 1878; 0. 23215, 
May 8, 1908. 

III A. Held that a post commander has no authority, under the 
fifty-second article of war, to require soldiers to march to church and 
participate in divine worship as a part of a military formation. C. 
20968, Jan. 19, 1907. • 

III B. The fifty-second article of war contains the statement that 
it is "earnestly recommended to all officers and soldiers diligently to 
attend divine service." Held that an officer or soldier so engaged, 
and while on his way to such service, or while returning, is on duty 
within the meaning of the clause in the act of April 23, 1904 (33 Stat., 
272), which provides ''for medical care and treatment of officers and 
enfisted men of the Army on duty." C. 17045,- Oct. 25, 1904. 

II V A. Held that it would not be sound construction to. extend 
the specific measure of redress contained in the fifty-fourth article 
of war to other than the specified cases. Its strict construction 
therefore would limit the specific redress to acts of violence against 

'See the similar view expressed in G. C. M. O. 129, Dept. of the Missouri, 1872; 
do. 77, id., 1874. 

2See Samuel, 330, 331. 

^Compare Hough (Practice), 172, and cases in G. O. 23, Dept. of the Missouri, 
1862; G. C. M. O. 11, 152, Id^yXm. 



132 AETICLES OF WAR LIV B. 

a person, but the weight of American authority further extends it 
to acts of violence against property. R. 7, 263, Feb., 1864; P. 37, 
293, Dec, 1889; C. 5347, Nov., 1898; 8043, Apr. 17, 1900; 16180, 
Sept. 11, 1903; 20543, Oct. 19, 1906; 22357, Nov. 15, 1907. 

LIVB. This article is mandatory in its terms. The action re- 
quired of the commanding officer is both harsh and summary, but it 
must be applied to all cases falling within its scope. In a case when 
a proper complaint was presented and the requirements of existing 
orders and regulations were complied with by the post commander, 
in his efforts to identify the offenders, but it was found to be impossible 
to ascertain their names, and as it appeared that substantially the 
entire enlisted membership of the command was present and partici- 
pated in the damage, the stoppage was made pro rata against them; 
held to be action within the scope of the article. C. 13106, Aug. 22, 
1902. 

IIV C. Wliere complaint was duly made, under the fifty-fourth 
article of war, of injury done by persons of a command, but the active 
perpetrators could not upon investigation be found, it appearing, how- 
ever, that the entire command was present and impUcated, held that 
stoppages might legally be made against all individuals present. R. 
8, 671, July, 1864; 12, 673, Sept., 1865; 50, 9, Jan., 1886; C. 1861, 
Nov., 1895; 6839, Aug., 1899; 13106, Aug. 9, 1902; 24491, Pel. 10, 
1909; 26836, June 4, 1910. 

LIV C 1. Where, in a proper case, an entire command was assessed 
in the operation of the article; held, that from such assessment there 
should be excepted those men whose duties were such as to preclude 
the belief that they were present at the commission of the act for 
which damages are to be assessed. Members of the guard, the sick 
in hospital, men in confinement or absent from the post on duty, etc., 
would therefore be withdrawn from the operation of the order of 
assessment. C. 19196, Pel. 13, 1906. 

IIV D 1. It does not affect the question of reparation under the 
article that the offender or offenders may be criminally liable for 
the injury committed, or may have been punished therefor by the 
civil authorities. R. 34, 335, June, 1873; C. 22357, Nov. 15, 1907. 

IIV D 2. The stoppage contemplated is quite distinct from a 
punishment hy fine, and it can not affect the question of the summary 
reparation authorized by the article that the offender or offenders 
may have already been tried for the offense and sentenced to for- 
feiture of pay. In such a case, indeed, the forfeiture, as to its execu- 
tion, would properly take precedence of the stoppage. On the other 
hand, where the stoppage is first duly orderea under the article, it 
has precedence over a forfeiture subsequently adjudged for the 
offense. R. 21, 447^ June, 1866; C. 8043, Apr. 17, 1900; 21157, Mar. 
2, 1907. 

IIV E 1. Held that, as an agency for assessing the amount of the 
damage, a court martial could not properly be substituted for the 
board, directed by General Order 35, Headquarters of Army, 1868, 
to be convened for such purpose. R. 37, 52, Oct., 1875; C. 21157, 
Mar. 2, 1907. 

IIV F 1. The procedure under this article, and pursuant to Gen- 
eral Order 35 of 1868, is as follows: The citizen aggrieved tenders a 
"complaint" under oath, charging the injury against a particular 
soldier or soldiers, described by name (if known), regiment, etc., and 



ARTICLES OF WAR LIV F 2. 133 

accompanied by evidence of the injury, and of tlie instrumentality of 
the person or persons accused. If such evidence be satisfactory, the 
commanding officer has the damages assessed by a board, and makes 
order for such stoppage of pay as will be sufficient for the "repara- 
tion" enjoined by the article. The commander must have a proper 
case presented to Mm; he can not legally proceed sua sponte. R. 1^5, 
U, Aug., 1881; C. 1861, Nov. 22, 1895; 4768, Aug. 16, 1898; 5347, 
Nov. 21, 1898; 5586, Jan. 9, 1899; 6839, Aug. 4, 1899; 9766, Jan. 
28, 1901; 13106, Aug. 22, 1902; 14971, July 23, Aug. 28, 1903, 
Jan. 29, 1904, and July 22, 1907; 19196, Feb. 13, 1902; 21157, Mar. 
2, 1907; 23148, May 20, 1908. 

IIV F 2. Where the requirements of this article were violated by 
enlisted men of a regiment of Organized ]\Iilitia taking part in a joint 
encampment of Regular and Militia forces, suggested that the case be 
referred to the regimental commander with a view to its submission 
to the governor of the State for such redress as is authorized by the 
law of the State to which the militia forces belonged. C. 14971, July 
23, 1903. 

LIV G. Held that the fifty-fourth article of war is enforceable in 
Cuba and in the Philippine Islands (at date of opinion). C. 9677, 
Jan. 28, 1901. 

LIV H 1. Held that the remedial provision of the fifty-fourth 
article of war can not be enforced in favor of military persons {It. 26, 
352, Jan., 1868; 27, 453, Jan., 1869; 32, 152, Bee, 1891; C. 8043, Apr. 
17, 1900; 23148, Apr. 27 and May 20, 1908), or in favor of the United 
States. R. 26, 37, Sept., 1867; C. 20273, Aug. 21, 1906; 21148, Feb. 
28, 1907. 

LIV H 2. Held that the remedial provision of the fifty-fourth article 
of war can not be invoked to indemnify persons for propertystolen 
or embezzled. R. 35, 139, Jan., 1874; F. 37, 293, Dec, 1889; C. 
8043, Apr. 17, 1900;^ 15180, Sept. 11, 1903; 22357, Nov. 15, 1907. 

LVIII A. The jurisdiction conferred by this article upon military 
courts has been held by the highest judicial authority to be not 
exclusive, but concurrent merely with that of the civil tribunals.^ 
The word "shall," in the term "shall be punishable," is construed as 
equivalent to may.^ C. 4916, Sept., 1898. 

LVIII B. Wliere a sentence, adjudged by a court convened by the 
authority of this article, imposed a punishment of less severity than 
that provided for the same offense by the law of the State in which 
the offense was committed (as imprisonment where the law of the 
State recj^uired the death penalty) ; held that such a sentence was 
unauthorized and inoperative. R. 21, 6; Nov., 1865; 24, 4^> Dec, 
1866; C. 12646, May 19, 1902. But thoughthe punishment must not 
be "less," it may legallv be of greater severity than that provided by 
the local statute. R. 2, 564, June, 1863; 21, 77, Nov., 1865. Held 
that the court, in imposing punishment, should be governed by the 
local law (so far as required by the article) , although the offense was 

^ Coleman v. Tennessee, 7 Otto, 509, 513. And see People v. Gardiner, 6 Parker, 
143; G. O. 29, Dept. of the Northwest, 1864; do. 32, Dept. of Louisiana, 1866. 

The United States District Court for the District of Hawaii has jurisdiction of an 
assault committed upon a military reservation in the Territory of Hawaii. (See U. S. 
V. Kauchi Matohara, U. S. Dist. Ct. for the Territory of Hawaii, Oct., 1911, term, cases 
773-784.) 

^ People V. Gardiner, supra. 



134 AETICLES OF WAR LVin C. 

committed in a State whose ordinary relations to the General Govern- 
ment had been suspended by a state of war or insurrection.^ R. 7, 
205, Feb., 1864; C. 7304, Nov. and Dec, 1899; 10584, Dec. 18, 1901; 
11322, Oct. 3, 1901; 11658, Nov. 26, 1901; 11757, Dec. I4, 1901; 12177, 
Mar. 11, 1902; 12219, Mar. 17, 1904; 12234, Apr. 28, 1902; 12286, 
Mar. 24, 1902; 12456, Apr. 19, 1902; 12646, May 20, 1902; 12689, 
May 14, 1902. 

LVIII C. The local laws of a foreign country in the military occupa- 
tion of the United States in time of war are not "laws of any State, 
Territory, or District of the United States" within the meaning of 
this article. At such a time and in such a place the pilnishmcnt 
to be adjudged for the offenses named in the article would be dis- 
cretionary with the court-martial. . C. 5267, Nov. 1898; 5848 Feb., 
1899. 

LVIII D. Held that the officers and enlisted men of the Army 
serving in the Philippine Islands during the period of military occupa- 
tion were not amendable to the jurisdiction of civil courts for any of 
the offenses enumerated in the fifty-eighth article of war.^ C. 13770, 
Feb. 18, 1903. 

LIX A. This article is a recognition of the general principle of the 
subordination of the military to the civil power,^ and its main pui-pose 
evidently is to facilitate, in cases of offenders against the local civil 
statutes, who happen to be connected with the Army, the execution 
of those statutes, where, as citizens, such persons remain legaUy 
amenable to arrest and trial thereunder. Protection of military 
persons from civil arrest, except in certain cases, is not the object of 
this article. P. 54, 33, June, 1892; 63, 4O6, Feb., 1894; G- 638. Nov. 
16, 1894; 5635, Aug. 29, and Sept. 26, 1910; 17640, Mar. 11, 1905; 
17824, Apr. 13, 1905, and Apr. 12, 1907; 18339, July 27, 1906; 25219, 
July 20, 1910. Surrenders under this article are exempted from its 
operation in time of war. Held that the exemption clause did not 
forbid such surrender, in a proper case, in time of war. C. 11916, 
Jan. 16, 1902. 

LIX B. The commanding officer, before surrending the party, is 
entitled to require that the "application" shall be sufficiently specific 
to identify the accused and to show that he is charged with a particular 
crime or offense which is within the class described in the article. It 
has been further held that without a compliance with these require- 
ments the commanding officer can not properly surrender nor the civil 
authorities arrest, within a military command, an accused officer or 
soldier. Wliere it is doubtful whether the application is made in good 
faith and in the interests of law and justice, the commander may 
demand that the application be especially explicit and be sworn to; 
and in general the preferable and indeed only satisfactory course will 
be to require the production, if practicable, of a due and formal war- 
rant or writ for the arrest of the party.* B. 21, 567, July, 1866; 
23, 490, May, 1867; 35, 357, May, 1874; 58, 442, May, 1887; C. 
10107, July 25, 1901; 18518, Nov. 1, 1907; 24097, Nov. 16, 1908; 
25219, July 1, 1909. The application required by the article should 

1 That the Southern States diiring the civil war were "at no time out of the pale of 
the Union, " see White v. Hart, 13 Wallace, 646. 

2 See 24 Op. Atty. Gen. 570. 

^ See the declaration of this principle in Dow v. Johnson, 10 Otto, 169. 

* 2 Op. Atty. Gen., 10; 6 id., 413, 421; Ex parte McRoberts, 16 Iowa, 600. 603-605. 



ARTICLES OF WAE LIX O. 135 

be made in a case where the crime was committed by the party 
hejfore he entered the military service equally as where it was com- 
mitted by him while in the service.* In the former case a more exact 
identification may perhaps reasonably be required. R. 12, 1^5, Dec. 
1864: a 17640, Mar. 8, 1905. 

LIX C. The provisions of the article are applicable only when the 
officer or soldier is accused of a crime or offense "which is punisha- 
ble by the laws of the land," i. e., by the laws of the particular State 
oii Territory, or of the United States, or by the common law as rec- 
ognized in the State or Territoiy. R. 35, 357, May, 1874. The 
by-laws or ordinances of a town or city are a part of the ''laws of 
the land" withui the meaning of this article.^ C. 638, Nov., 1894. 

LIX D. It is a principle of comity, as between the civil and military 
tribunals, that the jurisdiction which first attaches should carry the 

' See G. O. 29, Dept. of the Northwest, 1864, where it is remarked that there is an 
especial obligation to surrender the soldier, where the crime was committed by him 
before entering the military service. 

2 As to the meaning of the term "laws of the land," especially as contrasted with 
municipal ordinances, see Vanzant v. Waddell, 2 Yerger, 270; State Bk. v. Cooper, 
id., 605; Horn v. People, 26 Mich., 221. But the question as applicable to the fifty- 
ninth article was specifically decided by Attorney General Olney under date of 
Nov. 26, 1894 (21 Op., 88), as follows: 

"1. Does the expression 'laws of the land' as used in the fifty-ninth article of war 
include city ordinances and by-laws? 

"2. May a soldier be arrested, tried, and punished by a civil authority for the vio- 
lation of a city ordinance? 

"3. If he escapes to a military reservation, can a demand be made by the civil on 
the military authorities for his surrender, and if so, will it be the duty of the com- 
manding officer to surrender him? 

' ' If the first question is answered affirmatively, I see no escape from the conclu- 
sions that a soldier may be arrested, tried, and punished by the proper civil author- 
ities for the violation of a city ordinance, and that, if he escape to a military reserva- 
tion, his surrender may be demanded by the proper civil authorities and should be 
made by the military officer in command. 

"The real inquiry then being whether a municipal ordinance is comprehended by 
the phrase ' laws of the land ' as used in the fifty-nmth article of war, I have no hesi- 
tation in saying that in my judgment it is so comprehended. 

"The general reasoning on the subject by the learned Acting Judge Advocate Gen- 
eral, as contained in his elaborate memorandum of January 25, 1875, can not, I think, 
be successfully controverted and need not be here repeated. But it may not be amiss 
to make special reference to a class of adjudications which clearly define the nature 
of municipal ordinances and apparently render the result reached by Mr. Lieber 
inevitable. They are illustrated by a recent case in Vermont in which the facts were 
that a village charter granted to the village certain powers in the matter of licensing 
eating houses which were repugnant to a general statute already in force. The village 
made a by-law or ordinance pursuant to its charter and the question arose which 
prevailed — the ordinance or the general law? Did the general law nullify the ordi- 
nance or did the ordinance nullify the general law pro tanto and as regards that par- 
ticular village? The decision was that the ordinance, conforming as it did to the 
charter, repealed for that village the preexisting general law. It was held to do so 
because though in form an ordinance, yet being authorized by the village charter, it 
was in reality a special statute of the State of Vermont. The same principle is 
affirmed in numerous well-considered adjudications of the highest authority. But if 
valid municipal ordinances are in substance and effect special statutes of the State 
chartering the cities or towns making the ordinances, they are certainly to be regarded 
as among the ' laws of the land ' unless that phrase is to be construed as covering the 
general legislation of the State only and is exclusive of its special legislation. But no 
distinction of that sort, it is believed, has ever been attempted or has any foundation 
in reason or precedent. The result is, as already stated, that the by-laws or ordinances 
of a town or city are to be taken as part of the ' laws of the land ' within the meaning 
of that phrase as used in the fifty-ninth article of war." (Published in Circ. 15. 
A. G. O. 1894.) 



136 ARTICLES OF WAR LIX E. 

case to a termination. For sucli jurisdiction to attach, the prisoner 
should be in custody and charges should have been served upon him 
with a view to a trial by court-martial. When these conditions have 
been fulfilled the military authorities may decline to surrender the 
offender until the claims of the United States shall have been satisfied. 

Such retention of jurisdiction, however, is discretionary, and may 
be waived by the proper military authority, especially if the charge 
is a grave one, such as felonious homicide.^ C. 10048, Mar. 25, 1901; 
11589, Nov. 13, 1901; 14042, Dec. 5, 1904; 17767, Mar. 18 and June 
2, 1905;- 19466, Oct. 13, 1906; 21964, June 18, 1907; 22264, May 2Q, 
1908; 4644, July 20, 1908; 21694, Aug. 13, 1908; 23264, May 8 and 
27 and Aug. 9, 1909, and Nov. 28, 1910; 25219, July 1, 1909; 26233, 
Feb. 18, 1910; 26237, May 12, 1910; 5635, Sept. 27, 1910. 

LIX E. An officer or soldier accused as indicated by the article, 
though he may be willing and may desire to surrender himself to the 
civil authorities, or to appear before the civil court, should not in 
general be permitted to do so, but should be required to await the 
formal application. R. 31, 622, Sept., 1871. 

LIX F. The term *'any of the United States," employed in this 
article, held properly to include any and all the political members of 
our governmental system, and to embrace an organized Territory 
equally with a State. P. 63, 4O6, Feb., 1894. 

LIX G. The article is directory not jurisdictional. It does not 
limit the action to be taken by the military authorities to cases where 
the application is made by the injured party or in Ms behalf. It does 
not place a soldier who has committed a crime and been indicted there- 
for beyond the reach of the civil power if the person injured does not 
apply for his surrender. In a case — one of murder, for example — 
where there can be no personal application, the State properly takes 
the place of the individual. And so in all other cases where an indict- 
ment has been found, or a warrant of arrest has been issued, the State 
(using the term in its general sense) with which resides the jurisdiction 
and the power to prosecute, may make the demand, and upon its 
demand it is the duty of the commanding officer to surrender the party 
charged. P. 54, 33, June, 1892. 

LIX G 1 a. Held that there is no provision of law for the transpor- 
tation at the expense of the United States to the place where he is 
wanted by the civil authorities of a surrendered soldier under the 
fifty-ninth article of war (C. 1872, Nov. 23, 1895; 7609, Jan. 25, 1.900; 
13354, Sept. 26, 1902; 13389, Oct. 6 and Nov. 11, 1902; 17824, Apr. 13, 
1905; 18339, July 25, 1905; 18518, Sept. 8, 1905),^ even though he is 
surrendered on a legal warrant for a crime committed before enlist- 
ment. C. 1872, Nov. 23, 1895; 4780, Aug. 12, 1898; 16475, June 21, 
1904; 17640, Mar. 10, 1905. 

LIX G 1 b. A case of surrender under the fifty-ninth article of war 
has some of the aspects of extradition to a foreign State. Wiien a 
State asks for the surrender of a soldier, in the operation of the fifty- 
ninth article of war, it is a request made by a State on the Government 
of the United States for the surrender of an offender, and it would 
seem to be a reasonable condition in respect to such surrender that 
the State in whose behalf the request is made should charge itself 
with the burden of returning the surrendered soldier in the event of 

» See G. O. 7, Dept. of the South, 1871. 



ARTICLES OF WAR LIX G 1 b (l). 137 

an acquittal, or of any other disposal of the case than a conviction, 
upon wliich a sentence to imprisonment was based. C. 25219, June 
30, 1909; 17824, Apr. 13, 1905, and July 8, 1909; 26233, Feb. 18, 1910. 
Held that no reimbursement can be made to the soldier for expense 
of returning to his station out of anv appropriation under control of 
the Army. P. 57, 277, Jan., 1893. " 

LIX G 1 b (1). As enhsted men surrendered under this article are 
released by the civil authorities at a distance from their posts, without 
the nleans of returning thereto, and as the return journey is not one 
that is properly chargeable to the United States; recommended, that 
where the surrender of enlisted men is asked for, it;*be attempted to 
impose a condition that, if the soldier is acquitted, or the case is dis- 
posed of in any other way than by conviction, the soldier be returned 
to his post of duty at the cost of the authority to whom he was orig- 
inally surrendered. C. 25219, June 30, 1909^ 

LIX H. The article contemplates only cases in which an "officer or 
soldier is accused," etc. So, held that it did not apply to a case of a 
civihan (Chinese) laundryman employed and residing at a mihtary 
post, accused of a civil crime. The arrest in this case having been 
made without the knowledge of the commanding officer, remarlced, 
that wliile it is desirable that arrests by the civil authorities of civiHans 
residing upon mihtary reservations should, in general, be made upon 
application or notice to the proper commanding officer, such a course 
is a matter of comity only and can not be required. P. 1^2, 134, 
July, 1890. 

LIX I 1 . This article does not apply to a time of war. Held, how- 
ever, that it does not forbid the delivery of officers and soldiers 
accused of capital crime in time of war, but leaves the matter to the 
discretion of the proper authorities. C. 4916, Sept. 6, 1898; 5613, . 
Jan. 5, 1899; 13499, Oct. 27, 1902; 19855, Jan. 5, 1906. Held, 
therefore, in a particular case where an officer of Volunteers was 
charged with forgery that on presentation of a proper warrant he 
could, by direction of the Secretary of War, be surrendered to the 
civil authorities. C. 4644, July 23, 1898; 4831, Aug. 23, 1898; 
5613, Jan. 5, 1899. 

LIX I 2. Held that an officer 'absent on leave or a soldier on fur- 
lough may be arrested in the same manner as any civilian, as they 
are not under the immediate control of the military authorities. C. 
5613, Jan. 5, 1899. 

LIX I 3. Perjury is not an offense against the person or property 
of a citizen wdtliin the meaning of the fifty-ninth article of war. 
C. 26337, Mar. 18, 1910. 

LIX K. When a soldier after surrender under the fifty-ninth 
article of war is released by the civil authorities under bail and 
returned to duty, or when by escape from the civil authorities he has 
returned himself to the custody of the military authorities, lield that 
the department commander should instruct the commanding officer 
of such soldier to cause him to appear for trial by the civil authorities 
at the proper time. R. 21, 457, June 16, 1866. 

LIX L 1. Where a soldier doing guard duty shot and killed a sol- 
dier on the Fort Caswell Military Reservation, N. C, over which 
jurisdiction had been ceded to the United States, held that the 
commanding officer took proper action in declining to surrender the 
soldier to the civil authorities of the State, as jurisdiction is vested 



138 AETICLES OF WAR LIX L. 2. 

in the Criminal Court of the United States for the Eastern District of 
North CaroHna and in a legally constituted court-martial, and that 
if the proper United States court takes jurisdiction of the case as a 
matter of comity, the military jurisdiction should be waived. C. 
17735, Mar. 25, 1905. 

LIX L 2. Wliere a PhiHppine scout killed another scout under cir- 
cumstances which, in the opinion of his department commander, 
warranted the belief that the homicide amounted to murder, and 
charges had been prepared as required by Army Regulations (970 of 
1910), held that it was within the cUscretion of the department com- 
mander to turn him over to the civil authorities without bringing him 
to trial before a general court-martial, and that such action would not 
be in contravention of the requirements of the regulations. 0. 2169 Ji., 
July 9, 1908. 

LX A 1. The offense known as the dupUcating of pay accounts, 
where it involves, as it generally does, a presenting or a causing to be 
presented of a false or fraudulent claim against the United States, 
is properly chargeable under this article. R. 37, 356, Feb., 1876; J^2, 
569, Mar., 1880; C. 14619, Aug. 14, 1903; 16131, Apr. 5, 1904. 

LX A 2. Wliere an officer, by collusion with a contractor, who had 
contracted for the delivery of mihtary supplies, received for a pecu- 
niary consideration from the latter a less amount of suppHes than the 
United States was entitled to under the contract, while at the same 
time giving him a voucher certifying on its face the delivery of the 
whole amount, held that such officer was chargeable with an offense 
of the class defined in the 8th paragraph of this article. R. 35, 206, 
Feb., 1876. 

LX A 3. Where an officer of the Quartermaster Department used 
teams, tools, and other pubhc property, in his possession as such 
officer, in erecting buildings, etc., for the benefit of an association, 
composed mamly of civihans, of which he was a member, held that he 
was properly chargeable with a misappropriation of property of the 
United States. R. 10, 664, Dec, 1864- And similarly held of a loan- 
ing by such an officer of pubhc property (corn) to a contractor, for 
the purpose of enabfing him to fill a contract made with the United 
States through another officer.^ R. 29, 26, June, 1869. The fact 
that a practice exists in a post or other command of making a use (not 
authorized by regulation or order) of Government property for 
private purposes, or of loaning it in the prospect of a prompt return, 
can constitute no defense to a charge for such act as an offense under 
this article. Such practice, however, if sanctioned, though improp- 
erly, by superior authority, may be shown in evidence in mitigation 
of sentence. R. 29, 189, Aug., 1869. 

LX A 3 a. Where a quartermaster used temporarily with his private 
carriage a pair of Government horses in his charge, held that he was not 
properly chargeable with embezzlement, but with the offense (now 
under this article) of knowingly applying to his own use and benefit 
property of the United States, furnished for the military service. 
R. 4, 421, Dec, 1863. 

LX A 4. Section 5495, R. S., provides that the refusal of any person 
charged with the disbursement of public moneys promptly to transfer 
or disburse the funds in his hands "upon the legal requirement of an 

* Compare case in G. C. M. O. 46, Hdqrs. of Army, 1869. 



ARTICLES OF WAR LX A 5. .139 

authorized officer, shall be deemed, upon the trial of any indictment 
against such person for embezzlement, as 'prima jacie evidence of such 
embezzlement." Applying this rule to a military case, it is clear that, 
in the event of such a refusal by a disbursing officer of the Army, 
the burden of proof would be upon liim to show that his proceeding 
was justified, and that it would not be for the prosecution to show 
what had become of the funds. So, where an acting commissary of 
subsistence, on being relieved, failed to turn over the public mone*^s 
in liis hands to Ms successor, or to his post commander when ordered 
to do so, or to produce such moneys, exliibit vouchers for the same, or 
othermse account for their use, when so required by liis department 
commander ; lield that he was properly charged with and convicted of 
embezzlement (the embezzlement now prohibited by this article). 
R. 22, 548, January, 1867. 

LX A 5. Where an officer, for the purpose of obtaining the allow- 
ance of a fraudulent claim against the United States, willfully induced 
another to make to the Umted States a lease of premises for pubUc 
use, containing a false and fraudulent statement, Jield that he was 
chargeable with an offense of the class specified in the fourth para- 
graph of this article. P. 4^, 189, July, 1890. 

IX B 1. Where a soldier, in order to procure his discharge from the 
service and the payment thereupon of a considerable amount not in 
fact due him, forged the name of his commanding officer on a discharge 
paper and a "final statement " paper, and presented the same to a pay- 
master; held that he was chargeable with offenses defined in the 
second, fourth, and sixth paragraphs of this article. R. 28, 668, 
June, 1869. 

LX B 2. Held that a soldier who falsifies the entry in a company 
clotliing book commits an offense under the sixtieth article of war. 
C. 17555, Pel. 16, 1905. 

LX C. The offense of stealing, indicated in the ninth paragraph of 
this article, consists in a larceny of ''property of the United States 
furnished or intended for the military service." Except in time 
of war (see Fifty-eighth article), larceny of other property can be 
charged as a mihtary offense only when cognizable under article 62, 
as prejudicing good order and military discipline. (See Sixty-second 
article.) 

LX D. The misappropriation specified in the article need not be an 
appropriation for the personal profit of the accused. The words "to 
his own use or benefit," quaHfy only the term "applies." R. 23, 77, 
June, 1866. 

LX E 1 . Held, That under the concluding provision of this article, 
a soldier might be brought to trial for an offense of the class specified 
therein, while held imprisoned, after dishonorable discharge, under 
a sentence imposed for another offense, provided of course the two 
years' fimitation of article 103 had not expired. R. 31, 34, Nov., 
1870, P. 1, 673, July, 1883; 2327, May 25, 1896; 7264, Nov. 10, 
1899; 17901, Apr. 27, 1905; 25939, Dec. 16, 1909. 

LX E 2. In view of the words, "in the same manner," employed in 
the last paragraph of tliis article, considered in connection with the 
seventy-seventh article and section 1658, R. S., held, that a volunteer 
or mihtia officer or soldier could be tried after his discharge from the 
service for a breach of tliis article committed while in the service only 
by a court composed in the one case of other than regular officers and 



140 " ARTICLES OF WAE LX E 3. , 

in the other of mihtia officers. R. 19, 670, July, 1866; 26, 166, 
Nov., 1867; C. 17901, Apr. 24, 1905; 26609, Nov. 13, 1909. 

LX E 3. As a question has been raised as to the constitutionality ^ 
of that portion of the sixtieth article of war which provides that 
officers and enlisted men may be tried for violation of that article 
after dismissal or discharge, held, that that provision of the article 
can not be considered unconstitutional until it shall have been so 
judicially declared. C. 2327, May 27, 1896; 5835, Feb. 7, 1899; 
7264, Nov. 10, 1899; 10740, June 26, 1901; 10751, Nov. I4, 1901; 
I46I9, Aug. 16, 1903; C. 25939, Dec. 16, 1909. 

LX E 4. Two discharged soldiers were brought to trial under the 
last clause of article 60, and one was acquitted, and the other was con- 
victed but his sentence was disapproved. They applied for pay for 
the period spent in confinement awaiting trial and final action. Held 
that there was no law authorizing their being paid for such period. 
P. 63, 178, and 179, Jan., 1894. 

LX F. The application or operation of this article is in no manner 
affected by the enactment of March 3, 1875 (18 Stat., 479), consti- 
tuting embezzlement of public property a felony and making it triable 
by a United States court, such act being a purely civil statute. R. 46, 
101, July, 1882. 

LXI A. To constitute an offense under this article, the conduct 
need not be "scandalous and infamous." These words, contained 
in the original article of 1775, were dropped in the form adopted in 
1806. Nor is it essential that the act shomd compromise the honor of 
•the officer.^ It is only necessary that the conduct should be such as 
is at once disgraceful or disreputable and manifestly unbefitting both 
an officer of the Army and a gentleman.* An act, however, which is 
only slightly discreditable is not, in practice, made the subject of a 
charge under this article. The article, in making the punishment of dis- 
missal imperative in all cases, evidently contemplates that the conduct, 
whUe unfitting the party for the society of men of a scrupulous sense of 
decency and honor, shall exliibit him as unworthy to hold a commis- 
sion in the Army. _ R. 2, 52, Mar., 1863; C. 17667, Mar. 18, 1900.* 

LXI A 1. To justify a charge under this article, it is not necessary 
that the act or conduct of the officer should be immediately connected 
with or should directly affect the military service. It is sufficient that 
it is morally wrong and of such a nature that, while dishonoring or 
disgracing him as a gentleman, it compromises his character and 
position as an officer of the Army. R. 5, I48, Oct., 1863; 24, 555, 
May, 1867; 28, 649, June, 1869. 

LXI B 1. Knowingly making to a superior a false official report 
held chargeable under this article. R. 1, 365, Oct., 1862; 27, 123, 

» See G. C. M. O. 20, Hdqrs. Phil. Div., Manila, Nov. 6, 1911, which publishes the 
record of a case, in which case it was pleaded that this part of the sixtieth article is 
unconstitutional, and that the court had no jurisdiction. The court held that it had 
jurisdiction, tried, convicted, and sentenced the accused. 

2 G. O. 25, Dept. of the Missouri, 1867. 

3 "An officer of the Army is bound by the law to be a gentleman." Atty. Gen. 
Gushing, 6 Ops. 413, 417. See definitions or partial definitions of the class of offenses 
contemplated by this article, in G. O. 45, Army of the Potomac, 1864; do. 29, Dept. 
of California, 1865; do. 7, Dept. of the Lakes, 1872; G. C. M. O. 69, Dept. of the East, 
1870; do. 41, Hdqrs. of Army, 1879. See also G. O. 12, Dept. of the East, 1895. 

* See Carrington v. U. S. (208 U. S., 1). 



ARTICLES OF WAR LXI B 2. 141 

Aug., 1868. So of a deliberately false official certificate as to tlie 
truth or correctness of an official voucher, roll, return, etc. R. £7, 
290, Oct., 1868. So of any deliberately false official statement, 
written or verbal, of a material character. R. 27, 123, supra. So, 
where an officer caused the sergeant of the guard to enter in the 
guard book a false official report that he (the officer) had duly visited 
the guard at certain hours as officer of the day (when he had in fact 
not done so), and thereupon himself signed such report and submitted 
it to his post commander; Tield that his conduct was chargeable as an 
offense under this article. R. 42, 585, Apr., 1880; C. 23277, July 20, 
1908, and July 13, 1910. 

LXI B 2. The following acts, committed in a particular case, lield 
to be offenses within this article: Preferring false accusations 
against an officer; attempting to induce an officer to join in a fraud 
upon the United States; attempt at subornation of perjury. R. 27, 
435, Dec, 1868. 

LXI B 3. An attempt, by corrupt means, to induce an officer to 
give a vote, as a member of a post council of administration, in favor 
of a particular candidate for the tradership of the post, Jield properly 
charged under this article. R. 38, 671, July ^ 1877. 

LXI B 4. Held that a surgeon who appropriated to his own per- 
sonal use, and to that of his private mess, food furnished by the (jov- 
ernment for hospital patients, was guilty of an offense under this 
article. R. 2, 33, Feb., 1863. 

LXI B 5. The violation by an officer of a promise or pledge on 
honor, given by him to a superior — in consideration of the with- 
drawal by the latter of charges preferred for drunkenness — that he 
would abstain for the future or for a certain period from the use of 
intoxicating drink; held chargeable under this article. R. 27, 297, 
Oct., 1868; 29, 151, Aug., 1869; C. 22394, JO'n. 14, 1908.. 

LXI B 6. Where an officer appeared in uniform at a theater drunk 
and conducted himself in such a disorderly manner as to attract 
the attention of officers and soldiers who were present, as well as 
the audience generally ; held that he was properly convicted of a vio- 
lation of this article. R. 25,^ 479, Apr., 1868; 38, I40, July, 1876. 

LXI B 7. Engaging, when intoxicated, in a fight with another offi- 
cer, in the billiard room at a post trader's establishment, in the 
presence of other offi'cers and of civilians, held in the particular case, 
an offense within this article. R. 42, 478, Jan., 1880. So held of 
an engaging in a disorderly and violent altercation and fight with 
another officer in a public place at a military post in sight of officers 
and soldiers. R. 27, 635, Apr., 1869. 

LXI B 8. Gambling with enlisted men (in a public place in this 
case); held an offense within this article.*- R. 37, 127, Mar., 1873. 
And so of visiting in uniform a disreputable gambling house and 
gambling with gamesters. R. 42, 633, May, 1880. 

LXI B 9 a. Though a mere neglect on the part of an officer to 
satisfy his private pecuniary obligations will not ordinarily furnish 
sufficient ground for charges against him (R. 26, 551, May, 1868), 
yet where the debt has been dishonorably incurred — as where money 
has been borrowed under false promises or representations as to pay- 

' To the same effect, as an early precedent, see G. O. 1, War Dept., 1847. 



142 ARTICLES OF WAR LXI B 9 b, 

ment or security, or where the nonpayment has been accompanied 
by such circumstances of fraud, deceit, evasion, denial of indebted- 
ness, etc., as to amount to dishonorable conduct — the continued non- 
payment, in connection with the facts or circumstances rendering it 
dishonorable, may properly be deemed to constitute an offense 
chargeable under this article.^ R. 13, ^25, Peh., 1865; 23, 56/^, July, 
1867; 27, 430, Dec, 1868; 28, 328, Jan., 1869; 29, 208, Auq., 1869; 
34, 307, June, 1873; C. 5482, Dec, 1898; 5931, Mar., 1899; 20063, 
May 4, 1910. 

LXI B 9 b. An indifference on the part of an officer to his pecu- 
niary obligations, of so marked and inexcusable a character as to 
induce repeated just complaints to his military commander or the 
Secretary of War by his creditors, and to bring discredit and scandal 
upon the military service, held to constitute an offense within the 
purview of this article.- R. 23, 566, July, 1867. 

LXI B 9 c. Held that continued neglect, without suitable excuse, 
to pay honest debts after specific assurances have been given of 
speedy payment, is a dishonorable act, constituting an offense under 
the sixty-first article of war, especially when the refusals are so often 
repeated as to furnish reasonable ground for believing that the officer 
designs to indefinitely defer settlement. Such an offense is peculiarly 
aggravated when the debts are in the form of money borrowed from 
enlisted men or held in trust for them. R. 21, 635, Sept., 1866; 42, 
54, Nov., 1873; P. 59, 261, May, 1893/ Held further that embezzle- 
ment by an officer of a soldier's pay which was turned over to the officer 
at the pay table for delivery to the soldier is an offense under the sixty- 
first article of war. C. 15177, June 15, 1905; 20063, July 16, 1906. 

LXI BIO. Where an officer, in payment of a debt, gave his check 
upon a bank, representing at the same time that he had funds there, 
when in fact, as he was well aware, he had none; held that he was 
amenable to a charge under this article. R. 13, 207, Jan., 1865. 

LXI B 11. Where certain officers of a colored regiment made a 
practice of loaning to men of the regiment small amounts of money, 
for which they charged and received in payment at the- rate of two 
doUars for one at the next pay day; held that they were properly 
convicted of a violation of this article. R. 23, 260, Oct., 1866; 24, 72, 
Dec, 1866. 

LXI B 12. Where an officer stationed in Utah was married there 
by a Mormon official to a female with whom he lived as his wife, 
although having at the same time a legal wife residing in the States; 
held that he might properly be brought to trial by general court- 
martial for a violation of this article. R. 23, 164, Aug. 1866. So 

' Cases of officers made amenable to trial by court-martial, under this article, for 
the nonfulfillment of pecuniary obligations to other officers, enlisted men, post traders, 
and civilians are found in the following General Orders of the War Department and 
Headquarters of Army: No. 87, of 1866; Nos. 3, 55, 64, of 1869; No. 15, of 1870; No. 17, 
of 1871; Nos. 22, 46, of 1872; No. 10, of 1873; Nos. 25, 50, 68, 82, of 1874; No. 25, of 1875; 
No. 100, of 1876; No. 46, of 1877; Nos. 39, 124, of 1885; No. 31, of 1887; No. 54, of 1888; 
No. 20, of 1890; Nos. 3, 85, of 1891; Nos. 45, 65, 106, of 1893; No. 53, of 1894; No. 20, of 
1895; No. 38, of 1896; and No. 5, of 1897. For English precedents, see James Courts- 
Martial (Collection, charges, etc.), pp. 303, 395, 510, 618, 622, 696, 797, 802. 

^ See, on the subject of these complaints, the circular, issued originally from the 
War Department (A. G. O.), on Feb. 8, 1872, in which the Secretary of War "declares 
his intention to bring to trial by court-martial," under the sixty-first article of war, 
"any officer who, after due notice, shall fail to quiet such claims against him." 

3 See Fletcher v. United States, 148 U. S., 84, 91, 92; also 26 Ct. Cls., 541. 






ARTICLES OF WAR LXI B 13. 143 

held of an officer who committed bigamy by publicly contracting 
marriage in the United States, while having a legal wife living in 
Scotland whom he had abandoned. R. 4^, 98, Jan., 1879. 

LXI B 13. Abusing, assaulting, and beating his wife by an officer 
held chargeable as an offense under this article. R. 31, 4-00, May, 
1871. Similarly held with respect to failure on the part of an officer 
to support his wife and children without adequate cause. P. 59, 
348, May 11, 1893. 

LXI B 14. The institution by an officer of fraudulent proceedings 
against his wife for divorce, and the manufacture of false testimony 
to be used against her in the suit, in connection with an abandon- 
ment of her and neglect to provide for her support, held to constitute 
''conduct unbecoming an officer and a gentleman" in the sense of 
this Article. R. 43, 21, Oct., 1879; 50, 392, and 431, June, 1886; 
P. 59, 348, May, 1893. 

LXI B 15. The duplication of a ' 'pay account," or claim for monthly 
pay, is always an offense under this article. It is no defense that 
the transfer was made before the pay was actually due and pay- 
able, i. e., before the end of the month. While such a transfer may 
be inoperative in view of par. 1440, A. R. (1300 of 1895),^ in so far 
as that the Government may refuse to recognize it, it is valid as 
between the officer- and the party, and to allow the former to shel- 
ter himself behind the regulation would be to permit him to take 
advantage of his own wrongful and fraudulent act. P. 50, 43, Oct., 
1891, and 219, Nov. 1891; 51, 370, Jan., 1892; C. 25078, June 9, 
1909. 

LXII A. The word "crimes" in this article, distinguished as it is 
from ''neglects" and "disorders," means military offenses of a more 
serious character than these, including such as are also civil crimes — 
as homicide, robbery, arson, larceny, etc. "Capital" crimes (i. e., 
crimes capitally punishable), including murder, or any grade of mur- 
der made capital by statute, can not be taken cognizance of by courts- 
martial under this article. R. 1 , 473, Dec, 1862; 7, 429, 465, Mar. and 
Apr., 1864; 11,176, Nov., 1864; 29, 257, Sept., 1869; 32, 478, and 522, 
Apr., 1872; 34, 350, 447, July and Sept., 1873; 35, 385, Sept., 1874; 
36, 364, Apr., 1875; 41, 50, Nov., 1877. ^ A crime which is in fact 
murder, and capital by statute of the United States or of the State 
in which committed, can not be brought within the jurisdiction of a 
court-martial under this article by charging it as "manslaughter, to 
the prejudice," etc., or simply as "conduct to the prejudice," etc.- 
.If the specification or the proof shows that the crime was murder 
and a capital offense, the court should refuse to take jurisdiction or 
to find or sentence. If it assume to do so, the proceedings should be 
disapproved as unauthorized and void. R. 33, 155, July, 1872; 34, 
250, May, 1873; 42, 451, Dec, 1879; C. 17462, Jan. 28, 1905. 

LXII B. The term "to the prejudice of good order and military 
discipline," qualifies, according to the accepted interpretation, the 
word "crimes" as well as the words "disorders and neglects." Thus, 
the crime of larceny (sometimes charged as "theft" or "stealing") is 

» See par. 1281 A. R. 1910 Ed. 

^ See this opinion as given in an important case, adopted by the Secretary of War 
in his action on the same published in G. C. M. O. 3, War Dept., 1871; also the simi- 
lar rulings in G. C. M. O. 28, Dept. of Texas, 1875; G. O. 14, Dept. of Dakota, 1868; 
do. 104, Army of the Potomac, 1862. As to the jurisdiction of courts-martial in cases 
of murder, &.c.,in time qfivar, see Fifty-eighth article. 



144 ARTICLES OF WAR LXII C 1. 

held chargeable under this article when it clearly affects the order and 
discipline of the military service. Stealing, for example, from a fel- 
low soldier or from an officer (or stealing of public money or other 
public property, where the offense is not more properly a violation of 
art. 60) is generally so chargeable. R. 24, Ul,^pr; 1867; 26, 23, 439, 
487, Sept., 1867, to Mar., 1868; 36, 214, Jan., 1876; 39, 47, Dec, 1876. 
And so of any other crime (not capital), the commission of which has 

Prejudiced military discipline. As for example, manslaughter (or 
omicide not amounting to murder) of a soldier {R. 25, 592, June, 
1868; 31, 87, Dec, 1870; 278, Apr., 1871; 33, 155, July, 1872; 36, 
667, Sept., 1875; 37, 380, Mar., 1876; 41, 188, Apr., 1878); assault 
with intent to kill a fellow soldier {R. 27, 587, 654, Mar. and May, 
1869) ; forgery of the name of a disbursing or other military officer to 
a Government check or draft {R. 29, 369, Oct., 1869) ; or forgery of an 
officer's name to a check on a bank {R. 32, 623, May, 187^ whether 
or not anything was in fact lost by the Government or the bank or 
officer; forgery in signing the name of a fellow soldier to a certificate 
of indebtedness to a sutler (R. 9, 328, July, 1864) ', or to an order on 
a paymaster {R. 4^, 562, Mar., 1880); embezzlement or misappro- 
priation of the property of an officer or soldier {R. 39, 201, Oct., 1877) ; 
misappropriation of ration money, the act being a fraud and not a 
breach of trust. C. 18764, Feh. 5, 1906. ^ 

LXII C 1. Held that for an officer to print and publish to the Army 
a criticism upon an official report, made by another officer in the 
course of his duty to a common superior, charging that such report 
was erroneous and made with an improper and interested motive, was 
gravely unmilitary conduct to the prejudice of good order and mili- 
tary discipline. An officer who deems himself wronged by an official 
act of another officer should prefer charges against the latter or appeal 
for redress to the proper superior authority. He is not permitted to 
resort to any form of publication of his strictures or grievances. R. 39, 
431, Feb., 1878. So held that for- an officer to publish or allow to be 
published in a newspaper of general circulation charges and insinua- 
tions against a brother officer by which his character for courage and 
honesty is aspersed and he is held up to odium and ridicule before the 
Army and the community was a highly unmilitary proceeding and 
one calling for a serious punishment upon a conviction under this 
article, and this whether or not the charges as published were true. 
R. 4^, 284, May, 1879. 

LXII C 2. The withdrawing by a disbursing officer of the Army 
from an authorized depository of public funds for a purpose not pre- 
scribed or authorized by law — as for personal use, or to pay claims not 
due from the United States or payable by such officer — being a form of 
embezzlement defined by section 5488 R. S., is properly charged as 
embezzlemient under this article. R. 25, 588, May, 1868; 27, 414, Dec, 
1868; 33, 291, 495, Sept. and Nov., 1872; 38, 96, May, 1876. Though 
the offense may in terms be laid as a violation of the act of 1866 (5488 
R. S.), it is, indeed, only a form of a charge of violation of the ninety- 
ninth (now sixty-second) article of war,^ the act of Congress merely 

1 An examination of the opinions in the cases upon which the text ie based discloses 
the fact that the distinction between the character of the general offence of embezzle- 
ment and the particular embezzlement defined in the act of June 14, 1866, now sec. 
5488, R. S., is clearly set out and defined, the difference being so marked that it would 
be an error to charge the acts set out in the latter statute as a violation of the sixtieth 



AETICLES OF WAR LXII C 2. 145 

furnishing a definition of the offense. The act, it may be added, fur- 
nishes also a measure of punishment which may properly aid, though 
it need not necessarity govern, the discretion or a court-martial in 
imposing sentence. U.33, 495, Nov., 1872. But held, that to con- 
stitute such embezzlement it is not necessary that there should have 
been a personal conversion of the funds or an intent to defraud. The 
object of the law is to provide a safeguard against the misuse and 
diverting from their appointed purpose of pubUc moneys, and the 
intent of the offender, whether fraudulent or not, enters in no respect 

article of war. These opinions were rendered with reference to the trials of officers, 
which trials were published in the following general court-martial orders of the War 
Department: 43, 86, of 1868; 27, 34, of 1872; and 7, of 1873. 

In all of these cases, except the last one, the officers were tried, among other offences, 
for illegally withdrawing from the authorized depositories or applying to a purpose 
not authorized by law, money intrusted to them, and in each of these cases the money 
so withdrawn or misapplied was furnished or intended for the military service, but the 
offences were charged under the act of June 14, 1666, now sec. 5488, R. S., and not 
under what is now subdivision 9 of the sixtieth article of war. 

The officer named in the last order was tried under the act of March 2, 1863, now 
the sixtieth article of war, for embezzlement, and not for any acts legitimately charge- 
able under the act of June 14, 1866. 

In remarking upon the general offence of embezzlement as then set out in the thirty- 
ninth article of war of the articles of 1806, and upon the embezzlement defined in the 
act of June 14, 1866, Judge Advocate General Holt, in his opinion upon the case in 
G. C. M. 0., 34 supra, says: "* * * The court may well be supposed to have 
construed the thirty-ninth article as contemplating an embezzlement or misapplication 
with fraudulent intent, and to have acquitted on the ground that there was upon the 
testimony a reasonable doubt as to the existence of such intent. But if this con- 
clusion be accepted, the fact remains that no such construction could properly govern 
in connection with the other charge (embezzlement under the act of June 14, 1866). 
The statute of 1866, in view of which it was preferred, is the expression of extreme 
vigilance in regard to the proper use and disposition of the public moneys, found by 
the experience of the Government to have become imperatively necessary to be 
observed. It provides an additional safeguard of the Public Treasury by enacting 
that any disbursing officer who shall withdraw, transfer, or apply any of the public 
funds intrusted to him for any purpose not authorized by law shall be deemed guilty 
of a felonious embezzlement and be punished accordingly. The intent of the officer, 
whether innocent or fraudulent, enters in no manner into the statutory offence. If 
his act of withdrawal, application, etc., of the funds is simply one not authorized by 
existing law, he is guilty of the crime here defined by Congress. His intent, if inno- 
cent, may perhaps be considered in mitigation of pimishment, but can not be relied 
upon as a legal bar against conviction. The offence created by this act belongs to 
the class known as mala prohibita, but it is upon the repression of this class of offences 
that the safety of the Public Treasury largely depends." 

In the publication to the Army of this case, the Secretary of War, approving the 
views of Judge Advocate General Holt, said: "In the opinion of the Secretary of 
War, they might well have convicted the accused of at least a portion of the charged 
violations of the act of June 14, 1866 (now sec. 5488, R. S.), a statute enacted for the 
more complete protection of the Treasury, * * * and which without regard to 
the intent of the offender denounces all withdrawals from a public depository or 
dispositions of public moneys not authorized by express law." 

As a rule, therefore, acts defined in sec. 5488, R. S., have been brought to trial 
as embezzlement under this section in violation of the sixty-second article of war, 
and not under the sixtieth article of war. 

See in this connection in addition to the cases already cited those published in 
the following general court-martial orders (War Department): 5, of 1869; 21, 58, 81, 
of 1874; 52, of 1877; 5, of 1881; 30, of 1883. 

See also S. O. 172, A. G. O., of 1899 (order publishing case of Capt. 0. M. Carter, 
Corps of Engineers). See further, 0. M. Carter v. McClaughry (105 Fed. Reporter, 
p. 614). In the latter case the court, inter alia, said: "It is also contended that under 
the sixty-second article of war ^^o charge can be preferred that is embraced in any 
other article, and that as the chaise is that of embezzlement it is covered by either 
the first, fourth, or ninth paragraph of the sixtieth article of war. Assuming, but not 

93673°— 17 10 



146 ARTICLES OF WAR LXII C 3. 

into the statutory crime.' If the withdrawal or apphcation of the 
funds is simply one not prescribed or authorized by law, the offense is 
complete.2 R. 25, 588, May, 1868; 27, 116, July, 1868; 33, 494, 
Nov., 1872; 38, 96, May, 1876. An absence, however, of criminal 
motive in the illegal act may be shown in mitigation of sentence in a 
miUtary case. R. 33, 494, supra. So held, that it constituted no 
defense to a charge of an embezzlement of this class (though it might 
be shown in mitigation of punishment) that the officer had restored 
to the public depository the funds illegally withdrawn by him before 
a formal demand was made for the same. R. 25, 588, supra. 

LXII C 3. In view of the injunction and definition of sections 3622 
and 5491, R. S., an officer who, in his official capacity, receives pubHc 
money (not pay or an allowance) wliich he fails duly to account for to 
the United States, is guilty of embezzlement. The statute makes no 
distinction as to the sources from which the money is derived or the 
circumstances of its receipt. Nor is it material whether or not the 
officer actually converted it to his own use or what was the motive of 
his disposition of it. So held that an officer who, having claimed and 
exacted certain moneys of the United States from Government con- 
tractors, failed to pay the same into the Treasury, or to duly account 
therefor, was guilty of embezzlement under tliis article. P. 52, 138, 
Feb., 1892. 

LXII C 4. Where an officer allowed to an enfisted man and paid to 
him, out of certain public funds consisting of the proceeds of a pubhc 
sale of condemned quartermaster stores, an amount of 10 per centum 
on the total of such proceeds, as a compensation for the services of 
such man as auctioneer at the sale, held that such payment was 
illegal and unauthorized ^ and constituted an embezzlement of public 
money chargeable under this article. P. 59, 201, Apr., 1893. 

LXII C 5 a. Whether acts committed against civilians are offenses 
witliin this article is a question to be determined by the circumstances 
of each case, and in regard to wliich no general rule can be laid down. 
If the offense be committed on a military reservation, or other premises 
occupied by the Army, or in its neighborhood so as to be — so to 
speak — in the constructive presence of the Army ; or if committed by 

deciding, that no charge can be laid under the sixty -second article of war if it is men- 
tioned in any preceding article, still it is apparent that the embezzlement defined 
in sec. 5488, R. S., is not the offence denounced in either the first or fourth paragraph 
referred to, and I am also of the opinion that it is a species of embezzlement different 
from that defined in the ninth paragraph of the sixtieth article of war, since the money 
which is the subject of embezzlement under the latter article is money 'furnished 
for military service,' whereas under sec. 5488, the term 'money' comprehends 
any public money, whether appropriated for the military service or for other purposes. 
The offence denounced in sec. 5488 is much broader and more comprehensive 
than the other, the former being the application by a disbursing officer of money 
to any unauthorized purpose, whilst under the ninth paragraph mentioned the money 
which is the subject of the embezzlement is money appropriated specifically for the 
military service, and it is quite probable from the context of the entire paragraph 
that the term 'embezzlement,' as there employed, means such an offence as is gen- 
erally understood where one having the money of another in his custody appropriates 
it to his own use with felonious intent, intending to deprive the true owner thereof." 

' See remarks of the Secretary of War in G. C. M. O., 34, War Department, 1872, 
quoted in preceding note. 

'^ Compare 14 Op. Atty. Gen., 473. 

^ See opinion of the Second Comptroller of the Treasury published in Circ. No. 3, 
A. G. O.. 1894. 



; 



ARTICLES OF WAR L.XII 6. 147 

an officer or soldier while on duty, particularly if the injury is done to 
a member of the community whom the offender is specially required 
to protect; or if committed in the presence of other soldiers, or while 
the offender is in uniform ; or if the offender use liis military position 
or that of another for the purpose of intimidation or other unlawful 
influence or object — the offense will in general properly be regarded 
as an act prejudicial to good order and military disciphne and cogni- 
zable by a court-martial under this article. The judgment on the 
subject of a Court of military officers, experts as to such cases, con- 
firmed by the proper reviewing commander, should be reluctantly 
disturbed. R. 49, 268, Aug., 1885; P. 28, 207, N<yv., 1888; 34, 381, 
Aug., 1889; 36, 151, Oct., 1889. 

LXII C 6. It has been held by the War Department where it has 
been sought to cause the discharge without honor, without previous 
trial, of soldiers guilty of bestial offenses, that when possible men 
should not be discharged under the circumstances without a hearing, 
and that the best form of granting such a hearing was that of a trial 
by general court-martial; where, therefore, soldiers are charged 
with sodomy and the proof is sufficient to warrant a trial, they 
should be brought to trial and not summarily discharged. 

Wliere, on the other hand, it would appear that sufficient evidence 
to convict is not obtainable, or that a case is barred by the statute of 
limitations, the discharge of a man without honor, for the reason 
that he has become disqualified for service as a result of liis bad 
habits, has been authorized. C. 20615, Aug. 13, 1907. See also 
Discharge, III B to C; F. 

LXII C 7. Burglary at common law is the breaking and entering of a 
dwelling in the nighttime with intent to commit a felony. Wliere 
a soldier was brought to trial upon a charge of "Burglary," with a 
specffication setting forth that he forcibly entered the quarters of an 
officer in the night, with intent to steal, and it appearing that he 
entered through an oyen window, held that, although the offense 
shown was not a burglary in law — the essential element of a breaking 
being wanting — the charge and specification, taken together, omitting 
this element, made out a sufficient pleading of a disorder to the preju- 
dice of good order and military discipline, under the sixty-second 
article of war.^ R. 38, 391, Dec, 1876. And similarly lield of an 
offense charged as "conduct to the prejudice, etc.," and described in 
the specification as "burglariously breaking and entering a post 
trader's store in the daytime. R. 38, 548, Aug., 1870; C. 12177, 
Mar. 11 and May 15, 1902; 12224, ^W- U ^^02; 12689, May I4, 
1902; 22606, Jan. 9, 1908. 

IXII C 9. "False swearing," under the sixty-second article of war, 
as the term is used in the order prescribing maximum punishments, 
means, (1) taking a false oath in a military judicial proceeding as to 
a matter not material to the issue; (2) taking a false oath otherwise 
than in a judicial proceeding, before a person legally authorized to 
administer the oath and under circumstances affecting the interests 
of the mihtary service, P. 46, 211, Mar., 1891, and is an offense under 
the sixty-second article of war. P. 36, 359, Nov. 9, 1889. 

LXII C 10. Improper cUsposition of property in the charge and use 
of soldiers, other than the dispositions indicated in article 17, will 

' See G. C. M. 0. 205, Hdqre. of the Army, 1876. 



148 ARTICLES OF WAR LXII C 11. 

in general properly be charged under article 62.^ Likewise the 
selUng, through neglect losing, etc., by soldiers, of property issued to 
them, but not mentioned in article 17, should be charged under 
article 62. Thus held that a selHng or losing of the following articles 
was not punishable under article 17, but under article 62, viz, sheets, 
pillows, pillowcases, mattress covers, shelter tent, barrack bag, 
great-coat strap, tin cup, spoon, knife, fork, meat ration can, car- 
tridges. P. 17, 119, May, 1887; 21, 151, Dec, 1887; 52, 245^, Feb., 
1892; 0.12796, July 25, 1902. 

LXII C 11. Held that disrespectful language used in regard to his 
captain by a soldier, when detached from his company and serving 
at a hospital, to the surgeon in charge of which he had been ordered 
to report for duty, was an offense cognizable by court-martial under 
article 62. R. 6, 53, Mar., I864. 

IXII C 12. A noncompliance by a soldier with an order emanating 
from a noncommissioned officer, or offering violence to the latter, is 
not an offense under article 21, but one to be charged, in general, 
under the sixty-second. R. 9, 90, May, 1864; 11, 491, Mar., 1865. 

LXII C 13. A charge of drunkenness on duty (drill), held not 
sustained where the party was found drunk, not at or during the 
drill, but at the hour appointed for the drill, which, however, by 
reason of his drunkenness, he did not enter upon or attend. The 
charge should properly have been laid under article 62. R. 39, 226, 
Oct., 1877; 0. 15376, Apr. 22, 1910. ^ 

LXII C 14. Where an officer, after being specially ordered to remain 
with his company, absented himself from it and from his duty, and, 
while thus absent, became and was found drunk, held that he was not 
strictly chargeable with drunkenness on duty under article 38, but 
was properly chargeable with drunkenness in violation of the sixty- 
second article, disobedience of orders, and unauthorized absence. 
R.38, 425, Jan., 1877. 

LXII C 15. Held that it is competent for the President as Com- 
mander in Chief to prescribe a maximum punishment for the offense 
of loaning money at usurious rates of interest, and that if such order 
be issued it would be proper to make the punishment of noncom- 
missioned officers for that offense more severe that that of privates. 
0.28023, Mar. 27, 1911. 

LXII C 16. Held that soldiers who commit a disturbance upon 
private premises while in uniform violate the sixty-second article of 
war, as their conduct is to the prejudice of good order and military 
discipline. O. 16603, July 8, 1904. 

LXII C 17. Held, in the case of an officer who had been permitted 
by his commanding officer to leave his confinement in close arrest 
temporarily, and who delayed his return for a brief period beyond 
that fixed, that such delay did not properly constitute an offense 
under the sixty-fifth article of war but, if sufficiently serious, should 
be charged under the sixty-second article. R. 30, 562, Aug., 1870. 

LXII C 18. Held that a failure to obey an order to proceed and 
report in arrest to a certain commander was chargeable as an offense 
under the sixty-second article of war and not under the sixty-fifth 

^ As the pawning of a revolver. G. C. M. O. 77, Dept. of the Missouri, 1874. So, 
the gambling away of clothing. G. C. M. O. 41, Dept. of Texas, 1873. So, the spoiling 
by a bugler of his bugle. G. C. M. O. 36, War Dept., 1876. 



ARTICLES OF WAR LXII D. 149 

article of war. R.31, 606, Aug. 21 ,1871. Similarly held with regard 
to a breach of arrest, which arrest was not accompanied by confine- 
ment to quarters. R. 5, 122, Oct. 10, 1863; 11, 127, Nov. 4, 1864; 0. 
26140, Jan. 29, 1910. 

LXII D. The following offenses have been held properly charged 
or chargeable under this article, as disorders or neglects to the preju-. 
dice of good order and military discipline": Drunkenness or drunken 
and disorderly conduct, at a post or m public, committed by a soldier 
or officer when not ''on duty," and when the act (in the case of an 
officer) does not more properly fall within the description of article 
61. R. 1, 463, Bee, 1862; 8, 366, May, 1864; U, 79, Dec, 1866; 

28, 575, May 1869. Escape from military confinement or custody 
(where not amounting to desertion). R. 10, 674, Nov., 1864. 
Breach of arrest (where not properly chargeable under article 65). 
R. 29, 175, Aug., 1869. Disclosing a finding or sentence of a court- 
martial in contravention of the oath prescribed in article 84 or 85. 
R. 21, 628, Sept., 1866. Refusal by an officer or soldier to testify, 
when duly required to attend and give evidence as a witness before 
a court-martial. R. 4^, 596, Apr., 1880. Joining with other inferior 
officers of a regiment in a letter to the colonel, asking him to resign. 
R. 41, ^26, May, 1878. Neglecting, by a senior officer "present for 
duty" with his regiment, to assume the command of the same when 
properly devolved upon him, and allowing such command to be 
exercised by a junior. R. 11, 172, Nov., 186 4. Culpable malpractice 
by a medical officer in the course of his regular military duty. R. 2, 
378, May, 1863. CoUuding with bounty brokers in procuring fraud- 
ulent enlistments to be made and bounties to be paid thereon. R. I4, 
326, May, 1865. Violations, by an officer, of Army Regulations,^ in 
bidding in and purchasing, through another party, public ]3roperty 
sold at auction by himself as quartermaster; also in purchasing sub- 
sistence stores, ostensibly for domestic use, but really for purposes 
of traffic. R. 39, 283, Nov., 1877. Causing (by a_ quartermaster) 
troops to be transported upon a steamer known by him to be unsafe. 
R. 15, 301, June, 1865. Paying money due under a contract (for 
military supplies) to a party to whom, with the knowledge of the 
accused, the contract had been transferred in contravention of 
section 3737, R. S. R. 42, 44, Nov., 1878. Inciting (by an officer) 
another officer to challenge him to fight a duel. R. 28, 650, June, 1869. 
Assuming (by a soldier) to be a corporal in the recruiting service, and 
as such enlisting recruits and obtaining board and lodging for him- 
self and recruits without paying for same. R. 39, 229, Oct., 1877. 
Procuring (by a soldier) whisky from the post trader by forging an 
order for the same in the name of a laundress. R. 37, 270, Jan., 
1876. Breach of faith (by a soldier) in refusing to pay the post 
trader for articles obtained on credit, upon orders on him which had 
been guaranteed or approved by the company commander upon the 
condition that the amounts should be paid on the next pay day. 
R. 27, 282, Sept., 1868; 563, Mar., 1869; 28, 298, Jan., 1869; 

29, 574, Jan., 1870. Gambling by officers or soldiers under such 
circumstances as to impair muitary discipline (where the conduct, 
in the case of an officer, does not rather constitute an offense under 

' Violations of Army Regulations in general are properly chargeable as neglects (or 
disorders) to the prejudice of good order and military discipline. 



150 AKTICLES OF WAR LXII E. 

art. 61). R. 16, 381, July, 1865; 31, ^04, May, 1871; J^O, 32, Oct., 1877. 
C. 15538, Nov. 24, 1903. Striking a soldier, or using any unneces- 
sary violence against a soldier (by an officer). P. 39, 25, Feb., 1890. 
Neglect on the part of an officer of engineers to oversee the execution 
of a contract for a public work, placed under his charge, the due fulfill- 
ment of such charge being a military duty.^ P. 31, 357, Afr., 1889. 
A public criticism in a newspaper (by an officer) of a case which had 
been investigated by a court-martial and was awaiting the action of 
the President. R. 50, 86, Mar., 1886. Assuming (by an officer) to 
copyright as owner, and thus asserting the exclusive right to publish, 
in an abridged form, the Infantry Drill Regulations, property of the 
United States, and the formal official publication of which had 
already been announced in orders by the Secretary of War. P. 50, 
373, Dec, 1891; 62, 156, Oct., 1893. Selling condemned military 
stores (by an officer) without due notice, and not suspending the sale 
when better prices could have been obtained by deferring it, in vio- 
lation of Army Regulations. P. 50, 446, Dec, 1891. Misconduct by 
a soldier at target practice, consisting of breaches of the published 
instructions, false statements, or markings with a view fraudulently 
to increase a score, etc. P. 20, 357, Nov., 1887 j 21, 256, Dec, 1887. 
Violation (by a soldier) of a pledge given to his commanding officer 
to abstain from intoxicating liquors, on the faith of which a previous 
offense was condoned. P. 44, 11, Nov., 1890; C. 22246, Oct. 22, 
1907. Bigamy (by a soldier) committed at a military post. P. 21, 
430, Jan., 1888. Disobedience of orders by a general prisoner. 
C. 16220, Apr. 26, 1904- Absence from quarters between an unan- 
nounced inspection and reveille. C. 3694, Mar. 11, 1909. Attempt 
to commit rape, or assault and battery with intent to commit rape. 
C. 23910, Nov., 23, 1908. Failure to pay a debt due to post exchange 
or post laundry. C. 11776, Dec 17, 1901. Failure to pay debt 
when such conduct is to the prejudice, etc. C. 5482, Dec, 1898; 
5931, Mar., 1899. 

LXII E. The following acts have been held not to be cognizable 
as offenses under tliis article : A mere breach of the peace committed 
by a soldier (wliile absent alone and at a distance from liis post ^) in 
a street of a city, and in violation of a municipal ordinance. R. 33, 
277, Aug., 1872. Pecuniary transactions between enlisted men of a 
culpable character, but in their private capacity and not directly 
affecting the service or impairing military discipline. R. 11, 490, 
Feb., 1865;^ 18,^ 380, Nov., 1866; 36, 480, May, 1875. Speculating 
and gambling in stocks by a disbursing officer, the proper perform- 
ance of whose military duty was not affected. (But recommended 
that he be relieved from the duty of disbursing public money.) R. 17, 
22, July, 1865. Reenlisting by the procurement of the recruiting 
officer, after having been discharged for a disability still continuing; 
the act being in good faith, and the alleged offense being committed 
before the party could be said to have fully come into the service. 
R. 6, 203, June, 1864- A resort to civil proceedings by suit against 
a superior officer on account of acts done in the performance of mil- 
itary duty. But Tield that, if the verdict should be for the defendant, 

• See Runkle v. U. S., 19 Ct. Cls., 396, 411, 412. 

2 See S. O. 206, Dept. Mo., 1895; do. 5, id., 1896, and the order prescribing maximum 
punishments. Court-Martial Manual (1908, p. 53). 



ARTICLES OF WAR LXII F. 151 

and it should appear that the suit was without probable cause and 
maUcious, a charge under tliis article might perhaps be sustainable, 
P. 48, 3, Jan., 1891. The mere loaning of money at usurious or 
excessive rates of interest by a noncommissioned officer to privates, 
unless it should clearly be made to appear that such conduct pro- 
moted desertions or other results prejudicial to the discipUne of the 
command; but as the practice in this case had been long continued 
and was clearly demorahzing, advised that the noncommissioned 
officer be summarily discharged. P. 53, 173, Apr., 1892. The 
becoming infected, by a soldier, with a disease unfittmg him for serv- 
ice, as the result of vicious conduct. P. 61, 396, Sept., 1893; 0. 23429, 
Apr. 5, 1909. 

LXII F. Held that the sixty-second article of war is broad enough 
to include the offense of manslaughter to the prejudice of good order 
and mihtary disciphne. R. 11, 592, .Mar., 1865; 25, 592, June, 1868; 
38, 579, Apr., 1877. 

LXIII A. This article has been appUed principally to civilians 
serving in a quasi-military capacity in connection with troops in time 
of war and in the theater of war {R. 7, 4^3, Sept., 1863, and 511, 
Apr., 1864); such as teamsters, watchmen. Quartermaster's Depart- 
ment employees, and employees of the subsistence, engineer, and 
ordnance departments, provost marshal general, etc., ambulance 
drivers, telegraph operators, interpreters, guides, contract surgeons, 
employees on railroad trains and on transports. R. 7, 116, Feb., 1864; 
9, 111, 146, May, 1864; 11, 493, Mar., 1865; 12, 376, Mar., 1865; 
13, 459, Mar., 1865. Thus the forces employed in the "Ram Fleet" 
on western waters during the Civil War, including pilots, engineers, 
etc., were amenable to trial under this article (P. 2, 670, June, 1863); 
and civil employees, including guides for the Ai'my, during warfare 
with Indians. R. 32, 386, Mar., 1872; 36, 435, May, 1875. 

LXIII A 1. Held that retainers to the camp, such as officers' servants 
and the like, as well as camp followers generally, have rarely been 
subjected to trial by court-martial in our service, but they have gen- 
erally been dismissed from employment for breaches of discipline 
committed by them. R. 23, 331, Nov. 1866; C. 10603, June 13, 1901, 
and Jan. 13, 1903; 11341, Nov. 8, 1901; 25609, Nov. 12, 1909. 

LXIII B. The jurisdiction authorized by this article can not be 
extended to civilians employed in connection with the Army in time 
oj jyeace,^ nor to civiUans employed in such connection during the 
period of an Indian war, but not on the theater of such war. R. 38, 
557, Apr., 1877. In view of the limited theater of Indian wars, this 
exceptional jurisdiction is to be extended to civiHans, on account of 
offenses committed during such wars, with even greater caution than 
in a general war. R. 38, 64I, June, 1877; C. 10603, Dec. 4, 1903; 
25609, Nov. 8, 1909. 

LXIII B 1. Civilians can not legally be subjected to military juris- 
diction by the authority of tliis article ajter the war (whether general, 
or against Indians), pending which their offenses were committed, 
has terminated. The jurisdiction, to be lawfully exercised, must be 
Q^&VQis.Q(i during t\\e status helli. R. 38, 64I, supra. 

LXIII C. Held that trials of civiUans under this article of war 
should be restricted to cases of imperative necessity, leaving ordinary 

■ — ~ ■ — ——-^ — — i "~~ ~ 

1 See 16 Op. Atty. Gen., 13 and 48. 



152 ARTICLES OF WAE LXIII D. 

infractions of rule by civilian employees to be dealt with under the 
regulations governing the civil service, and that the promulgating 
order of the proceedmgs of such trials by courts-martial should set 
forth the circumstances which render a military trial necessary. 
C. 10782, June 29, 1901. 

LXIII D. The accepted interpretation of the sixty- third article of 
war is that it subjects in time of war the classes of persons specified 
not only to military disciphne and government in general, but also to 
the jurisdiction of courts-martial. R. 23, S31, Nov. 1, 1866. 

LXIII E. The forfeitures adjudged against the pay of civilian 
employees by courts-martial when sentenced under the sixty-third 
article of war should be withheld from their pay and allowed to 
remain in the appropriation to which pay pertains. C. 9326, Nov., 
1900; 10782, June 29, 1901. 

LXV A. Though any unauthorized leaving of his confinement by 
an officer in close arrest is, strictly, a violation of the article, it 
would seem, in view of the severe mandatory punishment prescribed, 
that an officer should not in general be brought to trial under the 
same unless his act was of a reckless or deliberately insubordinate 
character.^ R. 5, 122, Oct., 1863; 27, 136, Aug., 1868. 

LXV B. Held that a regimental commander is a ''commanding 
officer" within the meaning of the sixty-fifth article of war, although 
his regiment is a part of a higher command; for instance, part of a 
brigade or of a brigade post, ^nd this is true even if a j)art of his 
regiment is detached from the brigade or post of which it forms a 
part, a 26140, Jan. 29, 1910. 

LXV C. When an officer is placed in arrest in the operation of the 
sixty-fifth article of war and subsequently tried, held that he is not 
entitled to be released from arrest, as a right, until the proper review- 
ing authority has acted on the record of his case. C. 19854, June 24, 
1908. 

LXVI A. The word ''crimes" as used in article 66 is construed to 
mean serious military offenses. So that a soldier should not ordinarily 
be "confined" when not charged with one of the more serious of the 
military offenses — in other words, when charged only with an offense 
of a minor character. P. 36, 78, Oct., 1889; 50, I4I, Nov., 1^91. 

LXXIA. The term "within ten days thereafter," held to mean 
after his arrest. R. 9, 572, Sept., 1864; O. 15659, Dec. 19, 1903. 

LXXI B. Held a sufficient compliance with the requirement as 
to the service of charges, to have served a true copy or the existing 
charges and specifications, though the list of witnesses appended 
to the original charges was omitted, and though the charges them- 
selves were not in sufficient legal form, and were intended to be 
amended and redrawn. R. 25, 350, Feb., 1868. 

LXXI C. The fact that cases of officers put in arrest "at remote 
mifitary posts or stations" are excepted from the application of the 
article does not authorize an abuse of the power or arrest in these 
cases. And where, in such a case, an arrest, considering the faciHties 
of communication with the department headquarters and other cir- 
cumstances, was in fact unreasonably protracted without trial, 

* It is no defense to a charge of breach of arrest in violation of this article that the 
accused is innocent of the offense for which he was arrested. Hough (Practice), 494 ; 
id. (Precedents), 19. ' 



ARTICLES OF WAR LXXI D. 153 

keld that the officer was entitled to be released from arrest upon a 
proper application submitted for the purpose. R. 32, 195, ^5^, 
Jan. and Apr., 1872. 

LXXI D. Though an officer, in whose case the provisions of this 
article in regard to service of charges and trial have not been com- 
phed with, is entitled to be released from arrest, he is not authorized 
to release himself therefrom. If he be not released in accordance 
with the article, he should apply for his discharge from arrest, 
through the proper channels, to the authority by whose order the 
arrest was imposed, or other proper superior. R. 7, 163, Feb., 1864; 
8, 61, Mar., 1864; 9, 467, 550, Aug., 1864; 18, 161, Sept., 1865; 24, 
387, 580, Mar. and May, 1867; C. 16131, Feb. 16, 1905. 

LXXII A. The authority to order a court under this article is an 
attribute of command. Thus a department commander, detached 
and absent from his command for any considerable period by reason 
of having received a leave of absence (whether of a formal or informal 
character), or having been placed upon a distinct and separate duty 
(as that of a member of a court or board convened outside his depart- 
ment, for example), is held to be in a status incompatible with a full 
and legal exercise of such authority, and therefore incompetent 
during such absence to order a general court-martial as department 
commander,^ even though no other officer has been assigned or has 
succeeded to the command of the department. ^ R. 44^ 63, July, 
1880. (See One hundred and fourth article.) Nor can a department 
commander thus absent delegate such authority to a staff officer or 
other suborcUnate, to be exercised by him. H. 43, 264, ^"^9, Mar. 
and Apr., 1880; 0. 1499, July, 1895. Nor, where a general court- 
martial duly convened by a department commander has, at a time 
when the commander is thus absent from his command been reduced, 
by an incident of the service, below five members, can another member 
legally be detailed upon the court by the assistant adjutant general 
or other subordinate officer remaining in charge of the headquarters; 
since such a detail would be an exercise of a portion of the authority 
vested by this article in the commander, and which can in no part 
be delegated. R. 43, 332, June, 1880; C. 16710, Feb. 27, 1906; 
22162, Oct. 10, 1910. (See seventy-fifth article.) 

LXXII B. Where a comm'ander empowered by this article to con- 
vene a general court-martial, declines, in the exercise of his discretion, 
to approve charges submitted to him by an inferior and to order a 
court thereon, his decision should, in general, be regarded as final. 
R. 32, 323, Feb., 1872. 

LXXII C 1. A general court martial, convened by the division 
commander (a major general), duly acting as department commander 
in the absence of the regular department commander, is legally con- 
vened by a general officer commanding a department in the sense of 
tliis article. P. 26, 418, Sept., 1888. 

LXXII D 1 . A corps commander is held by the Secretary of War to 
be a commander of an army in the field, and may convene a court- 

* In absence of. legislation or of orders from competent authority forbidding it, 
personal presence within the territorial limits of his command is not essential to the 
validity of an order given by a department commander appointing a court-martial 
within such limits. (16 Op. Atty. Gen., 678.) 

2 See G. C. M. O. 9, Dept. of Columbia, 1880; and par. 195, A. R., as amended by 
G. 0. 20, A. G. O., 1901. 



154 ARTICLES OF WAR LXXII E 1, 

martial under the authority of this article.^ A corps commander 
may also convene such court where the division or separate brigade • 
commander is the accuser or prosecutor, by authority of the act of 
December 24, 1861 (12 Stat., 330), R. 7, 237, Feb., 1864. But sound 
principles of public policy require that only the highest military 
authority in any army should be vested with the final power of the 
confirmation and execution of sentences of death and dismissal, and 
the act of December 24, 1861, has never been construed as conferring 
this power upon a corps commander when his command is not a sepa- 
rate and distinct army, but only, as in the case of corps of the Army 
of the Potomac, a constituent part of a larger body.^ R. 11, 643, 
Mar., 1865; C. 4277, June 7, 1898; 4710, July, 1898; 5121, Oct. 8, 
1898; 8197, May 3, 1901; 16710, July 23, 1908. 

LXXII E 1. An assistant adjutant general, or other staff officer of' 
a department commander, is not empowered, of his own authority, 
in the absence of the commander, to relieve an officer duly detailed 
upon a court-martial by such commander, any more than he is so 
empowered to detail a new officer as a member of such a court. R. 43, 
332, June, 1880. 

LXXII F 1. The "Army of Cuban Pacification" was "an army" 
within the meaning of the seventy-second article of war, and not a 
territorial division or department.' C. 16710, Feb. 23, 1908. 

LXXII G 1. A lieutenant colonel in temporary command of a ter- 
ritorial division, department, or army, is without authority to appoint 
a general court-martial. C. 17335, Jan. 7, 1905; 17212, Feb. 13, 
1905; 16710, Jan. 20, 1908; 18764, Jan. 4, 1908. 

LXXII G 2, Held that an officer who is not qualified under the 
seventy-second article of war to convene a court-martial can not 
issue orders detailing members to a court already appointed, even 
though he succeed to the command held by the convening officer. 
C. 16710, Aug. 25, 1904. 

LXXII H. When troops in the prosecution of a practice march or 
while engaged in a joint encampment or maneuver pass within the 
territorial limits of a department, they pass, for court-martial pur- 
poses, from the jurisdiction of the department in which they are per- 
manently stationed into that of the commander of the department in 
which they are temporarily operating because of the duty mentioned 
above. C. 20052, May 9, 1907. 

LXXII I 1. Whether the commander who convened the court is 
to be regarded as the "accuser or prosecutor" in the sense of the 
article in question, where he has had to do with the preparing and 
preferring of the charges, is mainly to be determined by his animus 
m the matter. He may like any other officer initiate an investigation 
of an officer's conduct and formaUy prefer, as his individual act, 
charges against such officer; or by reason of a personal interest 
adverse to the accused he may adopt practically as his own charges 

' This refers to the old sixty-fifth, now the seventy-second, article, but both contain 
the expression "a general officer commanding an army. " 

2 Under date of Aug. 5, 1898, the Secretary of War decided (circ. 30, A. G. O., 1898) 
that "under the one hundred and seventh article of war a corps commander is held 
to be a commander of an army in the field when his corps is not a constituent part of a 
larger body and he may * * * confirm sentences of dismissal of officers. A corps 
commander may also convene such court where the division or separate brigade com- 
mander is the accuser or prosecutor. " 



ARTICLES OF WAR LXXII I 1 a. 155 

initiated by another; in which cases he is clearly the accuser or prose- 
cutor within the article. On the other hand, it is his duty to deter- 
mine, when the facts are brought to his knowledge, whether an officer 
within his command charged with a military offense shall in the inter- 
est of discipline and for the good of the service be brought to trial. 
To this end he may formally refer or revise or cause to be revised and 
then formally referred, charges preferred against such officer by 
another; or when the facts of an alleged offense are communicated 
to him, he may direct a suitable officer, as a member of his staff, or the 

{)roper commander of the accused, to investigate the matter, formu- 
ate and prefer such charges as the facts may warrant, and having 
been submitted to him, he may revise and refer them for trial as in 
other cases; all this he may do in the proper performance of his offi- 
cial duty without becoming the accuser or prosecutor in the case.^ 
Of course, he can not be deemed such accuser or prosecutor where he 
causes charges to be preferred and proceeds to convene the court by 
direction of the Secretary of War or a competent military superior. 
R. 7, 5, Jan., 1864; H, 285, Mar., 1865; SO, 170, Mar., 1870; 32, 
78, Oct., 1871, and 278, July, 1872; 34, IO4, Feb., 1873; 37, 189, Dec, 
1875; 42, 626, May, 1880; 55, 220, Dec, 1887, and 369, Mar., 1888; 
C. 2240, May, 1896; 3913, Mar., 1898; 17212, Feb. 17, 1905; 17335, 
Jan. 7, 1905; I88O4, Nov. 3, 1905; 19070, Jan. 17, 1906; 19854, June 
29, 1906; 24986, June 8, 1909; 25832, Jan. 27, 1910. 

LXXII I 1 a. But where the officer who made an investigation 
recommended that charges be not preferred and the department 
commander nevertheless directed that charges be prepared and 
brought the accused officer to trial thereon, lield, that such action, 
taken in connection with the further fact that official reports pre- 
viously made by the department commander and the nature of the 
offenses alleged manifestly disclosed on his part an interest and 
animus adverse to the accused, rendered him the accuser in the case. 
C. 2240, May, 1896. 

LXXII 12. It is not essential that the commander who convenes 
the court-martial for the trial of an officer should sign the charges to 

' "In a certain sense the commanding general is the prosecutor in nearly every 
case that comes before a military court within the limits of his command; for in 
almost every case charges are submitted to his examination, approval, and, if neces- 
sary, amendment, and there is always an informal preliminary adjudication by him 
to determine that the case is one which is proper for trial by a coiut-martial before he 
orders the court-martial, and the accused to appear before it. It is quite apparent 
that in such case he ie not an accuser or prosecutor in the sense of the article of war. 
* * * He does not alter his position as commanding officer and become accuser or 
prosecutor in the sense of the * * * article * * * ^ because he himself sees 
that the charges are in proper and definite legal form, and to that extent superintends 
teir preparation. In the present case, the charges were not actually signed by Gen- 

eal . He had no personal relation to, or knowledge of, the matter out of which 

the charges grew, so as to have created in him any personal feeling or interest in the 
conviction of the prisoner. In considering alike the guestion of the propriety of a 
court-martial and the preferment of charges, he dealt with the matter, as a command- 
ing officer must deal in a large number of instances, upon the statements and allega- 
tions of others, and decided the matter in his own mind no further than to pronounce 
that upon the information before him the alleged offender should be brought before a 
court-martial." Opinion of Attorney General Devens, Aug. 1, 1878, vol. 16, p. 109. 
It is also held in this opinion that where the record of the trial fails to indicate that the 
convening officer was the "accuser or prosecutor" of the accused, the latter, in apply- 
ing to the Secretary of War to have the proceedings pronounced invalid on this ground, 
may establish the fact by the production of affidavits setting forth the circumstances of 
the case and the action of the commander. 



156 ARTICLES OF WAR LXXIT I 3 a. 

make him the ''accuser or prosecutor" within the meaning of this 
article. Nor is the fact that they have been signed by anotlier con- 
clusive on the question whether the convening commander is the 
actual accuser or prosecutor. The objection that such commander 
is such, calls in question the legal constitution of the court, and while ' 
such objection, if known or beheved to exist, should regularly be 
interposed at or before the arraignment, it may be taken during the 
trial at any stage of the proceedings.^ If not admitted by the prose- 
cution to exist, the accused is entitled to prove it like any other issue. 
R. 1, 430, Nov., 1862; 8, 38, Mar., 1864. 

IXXII I 3 a. When superior authority directs the commanding 
general of a department to bring a certain officer to trial for certain 
indicated offenses and leaves the details only of the preparation of 
the charges and specifications to the discretion of the department 
commander, held, that the department commander by thus pre- 
paring the charges does not become the accuser within the meaning 
of the seventy-second article of war. C. 17212, Feb. 17, 1905; 17335, 
Jan. 7, 1905; I88O4, Nov. 3, 1905. 

LXXII I 3 a (1). Held, that when, in the execution of his duties, 
the department commander is called upon to order the dej^artment 
judge advocate to formulate and sign charges made by another, the 
department commander who is the convening authority does not 
thereby become the accuser. C. 3913, Mar. 17, 1898. 

IXXIII A. According to the general definition given in the act of 
March 3, 1799 (sec. 1114, R. S.), a division is an organized command 
consisting of at least two brigades, and a brigade an organized com- 
mand consisting of at least two regiments of infantry or cavalry. A 
brigade, however, to be a "separate brigade" in the sense of this 
article, must not exist as a component part of a division: to authorize 
its commander to convene a general court-martial it must be detached 
from or disconnected with any division and be operating as a distinct 
command. Thus, where it appeared from the record of a trial that 
the court was convened by a colonel commanding the "2d Brigade, 
3d Division, 14th Army Corps," held, that it was quite clear that such 
colonel did not command a "separate brigade," and was therefore not 
authorized to order a general court-martial. R. 3, 546, Aug., 1863; 
6, 250, Aug., 1864; 10, 53 and 106, July and Aug., I864; 13,'29, Dec, 
1864; C. 4387, June 16, 1898; 7777, Mar. 6, 1900; 7778, Mar. 6, 1900; 
8531, Dec. 29, 1900; 17564, Mar. 2, 1905. 

LXXIII A 1. On August 31, 1864, was issued from the War Depart- 
ment a general order — No. 251 of that year — which directed as fol- 
lows : "Where a post or district command is composed of mixed troops, 
equivalent to a brigade, the commanding officer of the department or 
army will designate it in orders as 'a separate brigade,' and a copy of 
such order will accompany the proceedings of any general court mar- 
tial convened by such brigade commander. Without such authority 
commanders of posts and districts having no brigade or >nization 
will not convene general courts martial." Under thip xder, which 
was applied mainly to the commands designated ir :iie war of the 



* Or it may be taken to the reviewing officer with a vi^ \<i co his disapproving the 
sentence, or may be made to the President after the approval and execution of the 
sentence with a view to having the same declared inva' d or to the obtaining of other 
appropriate relief. 



I 



ARTICLES OF WAR L.XXIII A 2. 157 

rebellion as "districts," it was held by the Judge Advocate General 
as follows : That the fact that a district command was composed not 
of regiments but of detachments merely (which, however, in the num- 
ber of the troops, were equal to or exceeded two regiments) did not 
preclude its bemg designated as a "separate brigade," and that when 
so designated its commander had the same authority to convene 
general courts martial as he would have if the command had the regu- 
lar statutory brigade organization (R. 11, 110, Nov., 1864); that 
though a district command embraced a force considerably greater 
than that of a brigade as commonly constituted, yet if not designated 
by the proper authority as a "separate brigade" its commander 
would be without authority to convene general courts martial unless, 
indeed, his command constituted a separate "army" in the sense of 
the sixty-fifth (now seventy-second) article (R. 13, SJf.0, Feb., 1865); 
that it was not absolutely necessary, to give validity to the proceed- 
ings or sentehce of a general court martial convened by the com- 
mander of a separate brigade, that the command should be described 
as a separate brigade in the caption or superscription of the order 
convening the court and prefixed to the record, or even that a copy 
of the order designating the command as a separate brigade should 
accompany the proceedings. As to the latter feature the order of 
1864 is viewed as directory merelv; and though not to accompany 
the record with a copy of the order thus constituting the command 
would be a serious irregularity, as would be also — though a less 
serious one — the omission of the proper formal description of the 
command from the convening order, yet if the command had actually 
been duly designated, and in fact was, a separate brigade, and this 
fact existed of record and could be verified from the official records of 
the department or army, the omission of either of these particulars, 
though a culpable and embarrassing neglect on the part of the court 
or judge advocate, would not, per se, invalidate the proceedings or 
sentence. R. 19, 280, Dec, 1865, arid 681, Sept., 1866. 

LXXIIIA 2. i^^-W that the force under the provost marshal of the 
city of Manila, P. I., in April and May, 1901, was a separate brigade 
within the meaning of the seventy-third and one hundred and seventh 
articles of war. Held, therefore, that all persons subject to military 
law who were stationed or temporarily sojourning in the city of 
Manila were, for the purpose of court-martial jurisdiction, a part 
of his conjmand, as this was in time of war. (0. 10910, Aug. 17, 1901 .) 

LXXIII B 1, The different organizations which composed a divi- 
sion had been taken out from under the command of the division 
commander one by one until one regiment remained under the com- 
mand of the division commander at a date when he convened a 
general court-martial. Held, that he was not in actual command of 
a separate brigade and therefore had no authority to convene a 
court-martial, as his previous authority was based upon his command 
of a separate brigade. C. 5819, Feb. 4, 1899. 

LXXIII B 2. Held, that "a military governor of a district" has 
no authority as such to convene a court-martial. The record of a 
court-martial appointed by such officer under tliis article should show 
that the court was convened and the sentence approved by him in 
his capacity as a division or separate brigade commander. C. 7776, 
7777, 7778, Mar., 1900. 



158 ARTICLES OF WAR LXXIII B 3. 

LXXIII B 3. Where the caption of the orders appointing two 
general courts-martial were respectively, ''Headquarters 2d Detach- 
ment, Philippine Expedition, Steamer China at sea," and "Head- 
quarters Philippine Island Expeditionary Forces, 4th Expedition (2d 
Section), Steamer Rio de Janeiro at sea," and there being nothing 
with the records to show that the detachment or section had been 
designated or was in fact a "separate brigade," held that the sentences 
were void. C. 48^7, Aug., 1898; 5086, Sept., 1898. 

LXXV A 1 . It is for the convening authority under this article to 
determine what number of officers can be convened without manifest 
injury to the service, and his decision in the matter is conclusive.^ 
R. 3, 82, June, 1863. 

IXXV B 1 . Wliile a number of members less than five can not be 
organized as a court or proceed with a trial, they may perform such 
acts as are preUminary to the organization and action of the court. 
Less than five members may adjourn from day to day, and where 
five are present and one of them is challenged, the remaining four 
may determine upon the sufficiency of the objection. R. 5, 319, 
Nov., 1863. 

LXXV B 2. Where, in the course of a trial, the number of the mem- 
bers of a general court-martial is reduced by reason of absence, chal- 
lenge, or the reUeving of members, the court may legally proceed 
with its business so long 2iS jive members — the minimum quorum — 
remain; otherwise where the number is thus reduced below five. 
R. 16, 549, Sept., 1865; C. 22163, Sept. 30, 1907. 

LXXV B 3. A court reduced to four members and thereupon 
adjourning for an indefinite period does not dissolve itself. In 
adjourning it should report the facts to the convening authority and 
wait his orders. He may at any time complete it by the addition 
of a new member or members and order it to reassemble for business. 
R. 5, 319, supra; 39, 328, Nov., 1877. 

LXXVII A 1 . Held that the PhiHppine Scouts, being a part of the 
Regular Army of the United States, are not other forces within the 
meaning of the seventy-seventh article of war. C. 19272, Mar. 14, 
1906; 26772, Mar. 2,1911. 

LXXVII A 2. Held that a regular officer may be detailed to act as 
judge advocate of a court which tries a volunteer officer or solcUer 
as the restriction contained in the seventy-seventh article of war 
appHes only to members who vote on the question of guilt or inno- 
cence. C. 13710, Nov. 25, 1902. 

LXXVII A 3. Officers and soldiers of volunteers, not being militia, 
are as much a part of the Army as are regular officers and soldiers, 
but in view of the terms of the seventy-seventh article of war an 
officer of the Regular Army is not ehgible for detail as a member of 
a court-martial convened for the trial of volunteer officers or sokUers, 
nor can he legally act as such ^ even though he holds a volunteer 
commission.^ R. 19, 670, July, 1866; C. 9875, Apr. 26, 1909; 12682, 

' It was thus held from an early period by the U. S. Supreme Court. See Martin 
V. Mott, 12 Wheaton, 19, 34—37 (1827); Mullan v. U. S., 140 U. S., 240; Swaim v. 
U. S., 165 U. S., 553, 559. 

2 See McClaughry v. Deming, 186 U. S., 49. 

3 See U. S. V. Brown, 206 U. S., 240. 



ARTICLES OF WAR LXXVIII A. 159 

May 27, 1902; 15511, Nov. 20, 1903; 19272, Mar. U, 1906; 2521^9, 
Aug. 17, 1906; 259^5, Mar. 31, 1910. 

IXXVIII A. Seventy-eiglith article of war.* 

LXXXII A 1. It is not essential that the "officer commanding" 
should be of the rank of field officer. A commanding officer, though 
a captain or lieutenant, may convene a court-martial under this arti- 
cle, provided he has the required command. R. 8, 4^3, May, 186 4. 

LXXXII A 2. A commanding officer is not authorized to detail hiTrv- 
self, with two other officers, as a court under this (or the preceding) 
article. R. 24, 263, Jan., 1867. An ''acting assistant surgeon," not 
being an officer of the Army, can not be detailed on such court. R. 
30, 109, Feb., 1870. 

LXXXII B. The general term "other place" is deemed to be in- 
tended to cover and include any situation or locality whatever — post, 
station, camp, halting place, etc., at which there may remain or be, 
however temporarily, a separate command or detachment in which 
different corps of the Ai-my are represented, as indicated in the next 
paragraph. If such command, so situated, contains enough officers, 
other than the commander, available for service on court-martial, the 
commander will be competent to exercise the authority conferred by 
this article. R. 44, 32, June, 1880; 0. 856, Jan. 8, 1895, and Sept. 2, 
1908. 

LXXXII C 1 . Held, in view of the early orders ^ relating to the 
subject and of the practice thereunder, that the presence on duty 
with a garrison, detachment, or other separate command, at a fort, 
arsenal, or other post or place, and as a part of such command, of a 
single representative, officer or soldier, or a corps, arm, or branch of 
the service other than that of which the bulk of the command is com- 
posed — as an officer of the Quartermaster, Subsistence, or Medical 
department, a chaplain, an ordnance sergeant, or hospital steward, 
an officer or soldier of artillery where the command consists of infan- 
try or cavalry, or vice versa, etc. — might be deemed sufficient to fix 
upon the command the character of one "where the troops consist of 
different corps," in the sense of this article, and to empower the com- 
manding officer to order a court-martial under the same. R. 7, 174, 
Feb., 1864; U, 48, Feb., 1865; 21, 118, Dec, 1865; 26, 254, Dec., 1867. 
The presence, however, with the command, of a civil employee of the 
Army (as an "acting assistant surgeon") could have no such effect. 
R. 8, 483, May, I864. 

LXXXII C 2. Held that the commanding officer of the Army and 
Navy General Hospital at Hot Springs, Ark., is authorized, under the 
eighty-second article of war, to appoint a garrison court-martial at 
that station when the patients at the hospital consist of members of 
different arms of the service. O. 856, Sept. 1, 1901. 

' Attorney General RusH, Sept. 11, 1817, decided that when a marine officer was to 
be tried while the marines were associated with the Regular Army, officers of the 
Marine Corps should be associated with officers of the Army in the membership of 
the court. President Monroe approved this decision by indorsement Sept. 19. 1817. 
(See also 2 Op. Atty. Gen., 311.) 

^ The origiaal order is G. O. 5, Hdqrs. of Army, 1843. And see the law as announced 
later in G, 0. 13, Fourth Mil. Dist., 1867. 



160 ARTICLES OF WAR LXXXIII A. 

LXXXIII A. While infenor courts^ have, equally with general 
courts, jurisdiction of all military offenses not capital, committed by 
enlisted men, yet, in view of the limitations upon their authority to 
sentence, it is m general inexpedient to resort to them for the trial of 
the graver offenses, such as larcencies, aggravated acts of drunken- 
ness, protracted absences without leave, etc., a proper and adequate 
punishment for which would be beyond the power of such tribunals. 
The more serious offenses should, where practicable, be referred for 
trial to general courts, which alone are vested with a full discretion to 
impose punishment in proportion to the gravity of the offense. 
R. 7, 36, 207, Jan. and Feb., 1864; H, 210, Dec, 1864; 16, 315, June, 
1865; 26, 487, 533, Mar. and Apr., 1868; 42, 33, Nov., 1878. An 
inferior court can not, however, legally decUne to try or sentence an 
offender on the ground that it is not empowered under this article to 
impose a punishment adequate to his actual offense. R. 28, 57, Aug., 
1868; C. 11360, Oct. 10, 1901; 11861, Jan. 7, 1902; 13734, Nov. 23, 
1 902; 1 7352, Jan. 11,1 905; 1 8036,^ May 20, 1905. 

LXXXIII B 1. Capital offenses-(i. e., offenses capitally punishable), 
not being within the jurisdiction of inferior courts, such courts can 
not take cognizance of acts specifically made punishable by article 21, 
however shght be the offenses actually committed.^ R. 2, 189, Apr., 
1863; 11, 210, Dec, 1864; 24, 195, Jan., 1867; 26, 533, Apr., 1868; 
28, 53, Aug., 1868; 32, 334, Pel., 1872; C. 3445, Aug. 17, 1897; 10946, 
July 30, 1901; 14761, June 5, 1903. 

LXXXIII C. The hmitations imposed by the article have reference 
of course to single sentences. For distinct offenses made the subject 
of different trials resulting in separate sentences, a soldier may be 
placed at one and the same time under several penalties of forfeiture 
and imprisonment, or of either, exceeding together the limit affixed 
by the article for a single sentence.^ R. 31, 3, Feb., 1870. 

LXXXIII C 1 a. A sentence forfeiting pecuniaiy allowances in 
addition to pay, where the entire forfeiture amounted to a sum 
greater than one month's pay, held not authorized under this article. 
R. 29, 401, Nov., 1869. ... 

LXXXIII C 2, The limitation of the authority of inferior courts 
in regard to sentences- of imprisonment and fine, held not to preclude 
the imposition by them of other punishments sanctioned by the usage 
of the service; such, for example, as reduction to the ranks, either 
alone or in comiection with those or one of those expressly men- 

^ Regimental and garrison courts-martial and summary courts detailed under exist- 
ing laws to tiy enlisted men shall not have power to try capital cases or commissioned 
officers, but shall have power to award punishment not to exceed confinement at hard 
labor for three months or forfeiture of three months' pay, or both, and in addition 
thereto, in the case of noncommissioned officers reduction to the ranks and in the case 
of first-class privates reduction to second-class privates: Provided, That a summary 
court shall not adjudge confinement and forfeiture in excess of a period of one month, 
unless the accused shall before trial consent in writing to trial by said court, but in 
any case of refusal to so consent the trialmay be had either by general, regimental, or 
garrison court-martial, or by said summary court, but in case of trial by said summary 
court without consent as aforesaid, the court shall not adjudge confinement or for- 
teiture of pay for more than one month. Act of Mar. 2, 1901 {SI Stat., 951). 

2 G. O. 21, Hdqrs. of Army, 1858. And see G. 18, War Dept., 1859; do. 9, Dept. 
of Utah, 1858, where the proceedings of garrison courts in cases of capital offenses are 
pronounced void. 

3 See G. O. 18, War Department, 1859. 



ARTICLES OF WAR LXXXIV A. 161 

tioned.^ R. 30, 667, Oct, 1870; U, 659, Jan., 1882; 0. 1397, Sept., 
1895. 

LXXXIV A. This article makes the administering to the court of 
the form of oath thereby prescribed an essential preliminary to its 
entering upon a trial. UntU the oath is taken as specified, the court 
is not quahfied "to try and determine." R. 38, 196, July, 1876. The 
arraignment of a prisoner and reception of his plea — which is the com- 
mencement of the trial — before the court is sworn, is without legal 
effect. R. 9, 293, June, 1864; H, 323, Dec, 186 4. The article 
requires that the oath shall be taken not by the court as a whole, but 
by "each member." Where, therefore, all the members are sworn 
at the same time, the judge advocate will preferably address each 
member byname, thus, "You, A. B., C. D., E. F., etc., do swear," etc. 
R. 13, 483, Mar., 1865. A member added to the court, after fhe mem- 
bers originally detailed have been duly sworn, shoud be separately 
sworn by the judge advocate in the full form prescribed by the article; 
otherwise he is not quahfied to act as a member of the court. R. 10, 
563, Nov., 1864; H, 350, Apr., 1865. A member who prefers it may 
be affirmed instead of sworn.^ R. 2, 562, June, 1863. 

LXXXIV B. The members are sworn to try and determine the 
matter before them at the time of the administermg of the oath. In a 
case, therefore, where, after the court had been sworn and the accused 
had been arraigned and had pleaded, an additional charge, setting 
forth a new and distinct offense was introduced into the case, and the 
accused was tried and convicted upon the same; held that, as to this 
charge, the proceedings were fatally defective, the court not having 
been sworn to tr}^ and determine such charge.^ R. 24, 513, May, 1867. 

LXXXIV C 1. The ol)ject of the secrecy* in regard to the vote of a 
member is to place him, when voting, beyond the reach of influences 
which might induce him to act contrarv to his judgment on the merits 
of the case. P. 63, 263, Jan., 1894. 

LXXXIV C 2. Where the vote of each member of the court upon 
one of several specifications upon which the accused was tried, was 
stated in the record of trial, held that such statement was a clear 
violation of the oath of the court, though it did not affect the validity 
of the proceedings or sentence. R. 2, 59, Mar., 1863. A statement 
ill the record of trial to the effect that all the members concurred in 
the finding or in the sentence, while it does not vitiate the proceedings 
or sentence, is a direct violation of the oath prescribed by this article. 
R. 2, 76, Mar., 1863; 7, 3, Jan., 1864; 0. 13366, Sept. 29, 1902. 

1 See Manual for Courts-Martial (1908), p. 81, par. 13. The summary cojirt act 
approved June 18, 1898, specifically recognizes and authorizes reduction to the ranks 
as a punishment by such court. See also, amended eighty-third article, note 1, ante. 

2 See sec. 1, Revised Statutes. 

3 See G. C. M. 0. 39, War Dept., 1867; G. O. 13, Northern Dept., 1864. 

* The words "a court of justice" are deemed to mean a civil or criminal court of 
the United States, or of a State, etc., and not to include a court-martial. A case can 
hardly be supposed in which it would become proper or desirable for a court-martial 
to inquire into the votes or opinions given in closed court by the members of another 
similar tribunal. The only case which has been met with in which the members of a 
court-martial have been required to disclose their votes by the process of a civil court 
is that of In re Mackenzie (1 Pa. Law J. R. 356), in which the members of a naval 
court-martial were compelled, against their objections, to state their votes as given 
upon the findings at a particular trial. 

93673°— 17 11 



162 ABTICLES OF WAR L.XXXIV C 3. 

LXXXIV G 3. Held that the reopening of the court, after a con- 
viction, to receive evidence of previous convictions, was not a viola- 
tion of the eighty-fourth article of war. The procedure is in accord- 
ance with the spirit of the legislation which excludes judge advocates 
from closed sessions — to place prosecution and defense on a more 
equal footing, by allowing the accused to be present when evidence 
or previous convictions is submitted and to scrutinize and test the 
legality of the same. P. 63, 49, Dec, 1893; G. 3097, Apr., 1897. 

LXXXIV C 4. The disclosing of the finding and sentence to a clerk 
by permitting him to remain with the court at the final deliberation 
and^enter the judgment in the record, is a violation of the oath and a 
grave irregularity, though one which does not affect the validity of 
the proceedings or sentence. R. 28, lJf.6, Oct., 1868. 

IXXXVI A. The power of a court-martial to punish, under this 
article, being confined practically to acts done in its immediate pres- 
ence,^ such a court can have no authority to punish, as for a contempt, 
a neglect by an officer or soldier to attend as a witness in compliance 
with a summons.2 R. 6, 172, Oct., 1863. 

IXXXVI A 1. A court martial is authorized to exclude from its 
session any person who, it has good reason to believe, will endeavor 
to intimidate or interrupt the witnesses, or otherwise conduct himself 
in a disorderly manner. R. 29, 237, Aug., 1869. 

IXXXVI B 1 . A court martial has none of the common-law power 
to punish for contempt vested in the ordinary courts of justice, but 
only such authority as is given it by this article. Thus held that a 
court-martial was not authorized to punish, as for a contempt, under 
this article (or otherwise), a civilian witness duly summoned and 
appearing before it, but, when put on the stand, declining (without 
disorder) to testifv.=^ R. 9, 208, and 278, June, 1864; 21, 215, Feb., 
1866; 42, 595, Apr., 1880; 49, 306, Aug., 1885. 

IXXXVI B 1 Bm Where a contempt within the description of this 
article has been committed, and the court deems it proper that the 
offender shall be punished, the proper course is to suspend the regular 
business, and after giving the party an opportunity to be heard, 
explain, etc.,* to proceed — if the explanation is insufficient — to 
impose a punishment; resuming thereupon the original proceedings. 
The action taken is properly summary, a formal trial not being called 
for. Close confinement in quarters or in the guardhouse during the 
trial of the pending case, or forfeiture of a reasonable amount of pay, 
has been the more usual punishment.^ R. 30, 361, 570, May and 
Aug., 1870. 

^ It was held by the Secretary of War in the case of Lieut. Ool. Backenstos — G. 0. 14, 
War Dept., 1850 — that a court-martial had, under this article, no power to punish its 
own members. 

2 As to the power of courts of inquiry to punish for contempt, see note to one hundred 
and eighteenth article. 

^ By sec. 1 of the act of Mar. 2, 1901, "topreventthefailureof military justice," etc., 
provision is made for the punishment by civil authority of civilians refusing to appear 
or testify before general courts-martial. 

* See G. C. M. O. 37, Fourth Mil. Dist., 1868. 

* Instead of proceeding against a military person for a contempt in the mode con- 
templated by this article, the alternative course may be pursued of bringing him to 
trial before a new court on a charge for a disorder under art. 62. Compare Samuel, 
634; Simmons, sec. 434. The latter course has not unfrequently been adopted in our 
practice. 



II 



ABTICLES OF WAR LXXXVI Bib. 163 

LXXXVI Bib. The authority of the judge advocate (under sec. 
1202, R. S.) to issue "Hke process to compel witnesses to appear and 
testify which courts of criminal jurisdiction within the State, Terri- 
tory, or district where such military courts may be ordered to sit, 
ma}^ lawfully issue," does not vest the court-martial with power to 
punish a civilian witness for contempt who refuses to testify. R. ^9, 
306, Aw/., 1885. 

LXXXVIII A. Held that the following are sufficient grounds of 
challenge to a member of a court-martial: That the member is the 
author of the charges and a material mtness in the case. R. 2, 58^, 
June, 1863; 20, 18, Oct., 1865; 31, 210, Mar., 1871; 37, 43, Sept., 1875; 
315, Feb., 1876; 39, 2^0, Oct., 1877. Or that he is the prosecutor in the 
case. R. 33, 20^, July, 1872; 33, 257, Aug., 1872;^ 36, 257, Feb. 1875; 
37, 315, Feb., 1876. Or that he had expressed an opinion based upon the 
knowledge of the facts that the accused would be convicted whichever 
way he might plead. R. 37, 491, Apr., 1876. Or that a member was 
present at a mutiny, as a result of winch the accused was before the 
court on a charge involving homicide. R. 55, 529, Apr., 1888. Or 
on a charge of conduct unbecoming an officer and a gentleman that 
the member when challenged said that he would not associate with 
the accused, and that he had so stated. R. 24, 584, Mar., 1867. Or 
that the member had previously investigated the case as a member of 
a board of survey. R. 36, 599, July, 1875. Or as a member of a court 
of inquiry. R. 23, 406, Apr., 1867. Or as a member of a previous 
court-martial. R. 28, 181, Oct., 1868. 

IXXXVIII B. Held that a member of a court should not be excused' 
on challenge for the following reasons : The mere fact that he is to be 
. a witness (R. 2, 584, June, 1863; S3, 137, July, 1872; C. 10973, Feb. 28, 
1902) ; or that he ministerially or by order of a superior preferred the 
charges {R. 9, 258, June, 1864) ', or that ho was in command of the 
accused {R. 7, 534, June, 1864; 22, 63{, Mar., 1867); or that he is 
junior to the accused, unless he mil gain liis promotion by the dis- 
missal of the accused (R. 33, 137, July, 1872; 37, 189, Dec, 1875; 38, 
366, 376, Oct. and Nov., 1876; 55, 220, Dec, 1887); or that the 
member entertained an opinion as to the impropriety of acts such as 
those charged against the accused unaccompanied by any opinion as 
to his guilt (P. 64, Mar., 1894); or that the member had had a dis- 
agreement with the accused and the accused thought that the member 
"might be prejudiced," although the member declared that he was 
not conscious of any prejudice to the interests of the accused. R. 53, 
225, Apr., 1887. 

IXXXVIII C. Where before arraignment, the accused (an offi- 
cer), without having personal knowledge of the existence of a ground 
of challenge to a member, had credible information of its existence, 
held that ne should properly have raised the objection before the 
members were sworn, and that the court was not in error in refusing 
to allow him to take it at a subsequent stage of the trial. R. 41, 4^4, 
Sept., 1878. 

LXXXVIII D^ The court, as a whole, is not subject to challenge, 
yet all the members may be challenged provided they are challenged 
separately. R. 28, 632, May 26, 1869; 30, 361, May 23, 1870; 38, 
53, Jan. 31, 1876; 53, 225,^ Apr. 1, 1887. 

XCI A 1. Where the evidence of high officers or public officials — 
as a department commander, or chief of a bureau of the War Depart- 



164 ARTICLES OF WAR XCI B. 

ment — is required before a court-martial, the same, especially if the 
court is assembled at a distant point, should be taken by deposition, 
if authorized under this article. Such officers should not be required 
to leave their public duties to attend as witnesses, except where their 
depositions will not be admissible, and where the case is one of special 
importance and their testimony as essential. R. 7, 5, Jan., 1864- 
The Secretary of War should not be required to attend as a witness, 
or to give his deposition in a military case, where the chief of a staff 
corps or other officer, in whose bureau the evidence sought is matter 
of record, or who is personally acquainted with the facts desired to 
be proved, can attend or depose in his stead. R. 35, 505, July, 1874- 

XCI B. The party at whose instance a deposition has been taken, 
should not be permitted to introduce only such parts of the deposition 
as are favorable to him or as he may elect to use; he must offer the 
deposition in evidence as a whole or not offer it at all. R. 36, 236, 
Feb., 1875. 

XCI C. If the party at whose instance a deposition has been taken 
decides not to put it in, it may be read in evidence by the other party. 
One party can not withhold a deposition (duly taken and admissible 
under this article) without the consent of the other. R. 37, 9, Feb., 
1875. 

XCI D. When it is necessary to take a deposition in a foreign 
country, the papers should be forwarded to The Adjutant General for 
submission to the Department of State, with a request that a proper 
official of the diplomatic or consular service be designated to cause 
the deposition to be taken at the residence of the deponent or at the 
nearest point to such residence as is convenient for the purpose. R. 
42, 114, Jan., 1879; C, 13046, Nov. 24, 1903, July 6, 1906, Sept. 14, 
1906, Nov. 18, 1911; 17953, May 5, 19^5; 21294, Jan. 3, 1907; 
22294, June 3, 1909. 

XCI E. Held that. under the ninety-first article of war a court may 
not decide that a legal and material deposition shall not be taken. ^ 
P. 48, 59, June, 1891; C. 6739, July, 1899; 18666, Apr. 27, 1906; 
26990, July 28, 1910. 

XCI F. A deposition, introduced by either party, which is not ''duly 
authenticated," should not be admitted in evidence by the court, 
although the other party may not object. P. 34, 75, July, 1889. A 
deposition held irregular and inadmissible where it failed to show 
that the officer by whom it was taken was authorized to take it, or 
that he was quahfied to administer the oath to the witness. P. I4, 
285, Jan., 1887; 34, 75, July, 1889; 57, 61, Dec, 1892; C. 11942, 
Jan. 21, 1902; 12021, Feb. 1, 1902; 12035, Feb. 6, 1902; 12036, Feb. 
7, 1902; 18566, Apr. 27, 1906. 

XCI G. A court-martial has no power to qualify or authorize a com- 
manding officer, or any other officer or person, to take a deposition or 
administer an oath. R. 55, 486, Mar., 1888. 

XCI H. Article VI of the amendments to the Constitution declares 
that the accused shall be entitled " to be confronted with the witnesses 
against him." Held that this applies only to cases before the United 
States courts and not to accused persons before courts-martial, as 
courts-martial are not a part of the judiciary of the United States, but 
simply instrumentalities of the executive power. Held further, 

' It may require oral testimony before the court. 



ARTICLES OF WAR XCI I. 165 

therefore, that where the offense is not capital a deposition ma}'' be 
introduced before a court-martial. R. 19, 35, Oct., 1865; 38, I4I, 
July, 1876; 52, I48, Mar., 1887; 55, 1^86, Mar. 1888; P. U, 351, 
Dec, 1890; 52, 201^, Feb., 1892; 55, 493, Oct., 1892; C 13883, Dec. 29, 
1902; 17212, Feb. 24, 1905; 23941, Mar. 1, 1909. 

XCI I. A deposition can not be read in evidence in a capital case, 
that is, in a case where the offense mav be punished capitally. R. 3, 
485, Ajir. 7, 1854; 9, 646, Sept. 27, 1864; 32, 6. June 11, 1871; 42, 177, 
361, Feh. 28 and July 18, 1879; C. 5202, Oct. 24, 1898; 5240, Nov. 1, 
1898; 5702, Oct. 24, 1898; 5708, Jan. 24, 1899. 

XCI K. The deposition of a ^vitness who resides in a State, etc., 
witliin wliich the court is held, is not admissible except by consent of 
the parties.! R. 42, 361, July t€, 1879; C. 1829, Nov. 8,^1895; 5202, 
Nov. 9, 1906; 20772, _ June I4, 1907; 23481, June 24, 1908. 

XCIII A 1. It is in general good ground for a reasonable contin- 
uance, that the accused needs time to procure the assistance of coun- 
sel,^ if it is made to appear that such counsel can probably be obtained 
within the time asked, and that the accused is not chargeable with 
remissness in not having already provided liimself with counsel. 
R. 13, 400, Feb., 1865. 

XCIII A 2. That the charges and specifications upon which an 
accused is arraigned differ in a material particular from those con- 
tained in the copy served upon liim before arraignment, may well 
constitute a sufficient ground for granting him additional time for the 
preparation of liis defense. R. 24, 514, May, 1867. 

XCVI A. A sentence of death imposed by a court martial, upon a 
conviction of several distinct offenses, will be authorized and legal if 
any one of such offenses is made capitally punishable by the Articles 
of War, although the other offenses mav not be so punishable. R. 3, 
253, 276 and 480, July and Aug., 1863. 

XCVI B. A court martial, in imposing a death sentence, should 
not designate a time or place for its execution, such a designation not 
being within its province but pertaining to that of the reviemng 
authority. If it does so designate, tliis part of the sentence may be 
disregarded, and a different time or place fixed bv the commanding 
general.3 R. 3, 650, Sept., 1863. 5, 22, Sept., 1863. 

XCVII A. Tliis article, by necessary imphcation, proliibits the 
imposition of confinement in a penitentiary as a punishment for 
offenses of a purely or exclusively military character — such as deser- 
tion for example.'' R. 5, 500, Dec, 1863 ;^7, 538, Apr., 1864; 23, 415, 

» See G. C. M. 0. 102, Dept. of the East, 1871; do. 1, Division of South, 1875. 

2 G. C. M. O. 25, War Dept., 1875. 

^ It was held by the Supreme Court in Coleman v. Tennessee (7 Otto, 509, 519, 520), 
that a soldier who had been convicted of murder and sentenced to death by a general 
court martial in May, 1865, but the execution of whose sentence had been meanwhile 
deferred, by reason of his escape and the pendency of civil proceedings in his case, 
might at the date of the ruling (October term, 1878) "be delivered up to the military 
authorities of the United States, to be dealt with as required by law." 

More recently (May ,1879, 16 Op., 349), it has been held in this case by the Attorney 
General that the death sentence might legally be executed notwithstanding the fact 
that the soldier had meanwhile been discharged from the service; such discharge, while 
formally separating the party from the Army, being viewed as not affecting his legal 
status as a military convict. But, in view of all the circumstances of the case, it was 
recommended that the sentence be commuted to imprisonment for life or a term of 
years. 

* See G. 0. 4, War Dept., 1867; also the action taken in cases in the following Gen- 
eral Orders: G. O. 21 Dept. of the Platte, 1866; do. 21, id., 1871; do. 44, Eighth Army 
Corps, 1862; G. C. M. 0. 34, 35, 43, 46, 72, 73, Dept. of the Missouri, 1870. 



166 AETICLES OF WAE XCVII B. 

Apr., 1867; 28, 126, Sept., 1868; 29, 260, Sept., 1869; 31, 296, Apr., 
1871; 32, 255, Jan., 1872; 33, 175, July, 1872; C. 11^1^95, Apr. 17, 1903; 
lJfi2I^, May 7, 1903; 15623, Dec. 12, 1903; 16023, Apr., 1904; 1^464, 
Feb. 3, 1905; 17200, May 10, 1905; 25481, Sept. 1,1909. 

Or for lifting up a weapon against the commanding officer and dis- 
charging it at him with intent to kill, in violation of the twenty-first 
article of war. ^ P. 25, I4I, September, 1889; 64, 385, April, I894. 
Or for joining in a mutiny in violation of the twenty-second article 
of war. P. 26, 284, September 1888. 

XCVII B. An offense duly charged as "Conduct to the prejudice 
of good order and military discipline/' or as a violation of the sixtieth 
article of war, wliich, however, is in fact a larceny,'^ embezzlement, 
violent crime, or other offense mad» punishable with penitentiary 
confinement by the law of the State, etc., may legally be visited with 
this punishment. R. 9, 281, Jan., 1864; P- 28, 302, Nov., 1888; 
C. 14624, Apr. 22, 1903. 

XCVII C. The term "penitentiary," as employed in tliis article, 
has reference to civil prisons only — as the penitentiary of the United 
States or District of Columbia at Washington, the public prisons or 
penitentiaries of the different States, and the penitentiaries "erected 
by the United States" (see sec. 1892, R. S.) in most of the Territories.^ 
The term State or State's prison in a sentence is equivalent to peni- 
tentiary. R. 9, 70, May, I864. 

XCVII D. A court-martial, in imposing by its sentence the pun- 
ishment of confinement in a penitentiary, is not required to follow 
the statute of the United States or of the State, etc., as to the term of 
the confinement. It may adjudge, at its discretion, except as pro- 
vided in the fifty-eighth article of war,- a less or a greater term than 
that affixed by such statute to the particular offense. At the same 
time the court will often do well to consult the statute, as indicating 
a reasonable measure of punishment for the offense. R. 28, 247, 
Nov., 1868; P. 26, 497, Sept., 1888; 31, 117, Mar., 1889. 

XCVII E. Wliere a soldier is convicted of manslaughter in vio- 
lation of the sixty-second article of war, and shooting his superior 
officer in violation of the twenty-first article of war, and sentenced to 
imprisonment for life, held that as the maximum sentence for man- 
slaughter in the State where the offense was committed is imprison- 
ment in the penitentiary for eight years, the life imprisonment must 
be regarded as having been imposed under the twenty-fu"st article 
of war, which defines a strictly military offense, so that under the 
ninety-seventh article of war the United States military prison, and 
not the United States Penitentiary, must be designated as the place 
of confinement. C. 25576, Sept. 16, 1909. 

C A. The terms ^'cowardice" and ^ 'fraud," employed in this article, 
may be considered as referring mainly to the offenses made punish- 
able by articles 42 and 60. With these, however, may be regarded as 
mcluded all offenses in which fraud or cowardice is necessarily 
involved, though the same be not expressed in terms in the charge or 
specification. R. 11, 671, Apr., 1865. 

' In a case of larceny, the court should inform itself as to whether the value of the 
property stolen be not too small to permit of penitentiary confinement for the offense 
under the local law. See G. O. 44, Eighth Army Corps, 1862; G. C. M. 0. 63, Dept. 
of the Platte, 1872. 

2 See pars. 940 and 941, A. R. (981 and 982, 1910). 



I 



ARTICLES OF WAR C B. 167 

C B. The publication throughout the United States, in the Associ- 
ated Press dispatches, of the "crime, punishment, name, and place of 
abode" of the accused, held to be a sufficient compliance with the 
requirements of the one hundredth article of war. C. 10831, Aug. 
3, 1901. 

CII A. The Constitution (Art. V of the amendments) declares that 
"no person shall be subjected, for the same offence, to be twice put in 
jeopardy of life or limb." The United States courts, in treating the 
term "put in jeopardy" as meaning practically tried, hold that the 
"jeopardy" indicated "can be interpreted to mean nothing short of 
the acquittal or conviction of the prisoner and the judgment of the 
court thereon."^ So, lield that the term "tried," employed in this 
article, meant duly prosecuted, before a court-martial, to a final con- 
viction or acquittal; and, therefore, that an officer or soldier, after 
having been duly convicted or acquitted by such a court, could not 
be subjected to a second military trial for the same offense, except by 
and upon his own waiver and consent. That the accused msiy waive 
objection to a second trial was held by Attorney General Wirt in 
1818,2 g^j-^j j^g^g since been regarded as settled law. R. 5, 172, Oct., 
1863; 6 and 8, 62 and 37, Mar., 1864; 0. 6766, Jan., 1899; 5654, 
July 24, 1899; 24518, Mar. 25, 1909. 

CII A 1. Where the accused has been once duly convicted or 
acquitted, he has been "tried" in the sense of the article, and can not 
be tried again, against his will, though no action whatever be taken 
upon the proceedings by the reviewing authority (JR. 31, 300, Apr., 
1871); or, though th proceedings, findings (and sentence, if any) be 
wholly disapproved by him.^ R. 9,611, Sept., 1864; ^7, 348, Nov., 
1868, and 605, Apr., 1869; 38, 38, Apr., 1876; P. 60, 177, June, 1893; 
C. I68I4, Apr. 29, 1907. It is immaterial whether the former con- 
viction or acquittal was approved or disapproved. P. 36, 259, Nov., 
1889. 

CII B. Held that there was no "second" trial, in the sense of the 
article, in the following cases, viz: Where the party, after being 
arraigned or tried before a court which was illegally constituted or 
composed, or was without jurisdiction, was again brought to trial 
before a competent tribunal. R. 9, 261, June, 1864; 18, 214, Sept., 
1865; 28, 68, Aug., 1868; C. 1645, Sept., 1895; 4036, Apr., 1898; 
16710, Aug. 9, 1904- Wliere the accused, having been arraigned upon 
and having pleaded to certain charges, was rearraigned upon a new set 
of charges substituted for the others which were withdrawn. R. 19, 
212, Oct., 1865. Wliere one of several distinct charges upon which 
the accused had been arraigned was withdrawn pending the trial, and 
the accused, after a trial and finding by the court upon the other 
charges, was brought to trial anew upon the charge thus withdrawn. 
R. 5, 213, Oct., 1863. Where, after proceedings commenced, but dis- 
continued without a finding, the accused was brought to trial anew 
upon the same charge. R. 5, 192, Oct., 1863. Where, after having 
been acquitted or convicted upon a certain charge which did not in 

1 United States v. Haskell, 4 Wash. C. C, 402, 409. And see United States v. Shoe- 
maker, 2 McLean, 114; United States v. Gilbert, 2 Sumner, 19; United States v. Perez, 
9 Wheaton, 579; 1 Op. Atty. Gen., 294. 

21 Op. Atty. Gen., 233. And see also 6 id., 200, 205. 

^Compare Macomb, sec. 159; O'Brien, 277; Rules for Bombay Army, 45; McNaugh- 
ton, 132, 133. 



168 ARTICLES OF WAR CII C. 

fact state tlie real offense committed, the accused was brought to trial 
for the same act, but upon a charge setting forth the true offense. 
R. 25, 675, June, 1868; 27, 604, A'pr., 1869. Where the accused was 
brought to trial after having had his case fully investigated by a dif- 
ferent court, which, however, failed to agree in a finding and was con- 
sequently dissolved.^ R. 25, 73, Sept., 1867. Wliere the court was 
not sworn. C. 9472, Dec. 24, 1900. Wliere the first court was dis- 
solved because reduced below five members by the casualties of the 
service pending the trial. R. 6, 62, Mar., 1864- Where, for any 
cause, without fault of the prosecution, there was a "mistrial," or 
the trial first entered upon was terminated, or the court dissolved, at 
any stage of the proceedings before a final acquittal or conviction. 
R. 5, 192, Oct., 1868; P. 32, 29, Apr., 1889; 14761, June 5, 1903; 
16710, Aug. 25, 1904; 17773, Apr. 5, 1905. 

CII C. it is no objection to the assuming by a court-martial of 
jurisdiction of a military offense committed by an officer or soldier, 
that he may be amenable to trial, or may actually have been tried 
and convicted, by a criminal court of the State, etc., for a criminal 
offense involved in his act. Thus, a soldier may be tried for a viola- 
tion of article 21, in striking or doing other violence to a superior 
officer, after having been convicted by a State court for the criminal 
assault and battery. So, an officer or soldier may be brought to trial 
under a charge of "Conduct to the prejudice of good order and mili- 
tary discipline" for the military offense (if any) involved (see sixty- 
second article) in a homicide or a larceny of which, as a civil offense, 
he has been acquitted or convicted by a State court. ^ And the 
reverse is also law, viz, that the State court may legally take cog- 
nizance of the criminal offense involved, without regard to the fact 
that the party has been subjected to a trial and conviction by court- 
martial for his breach of military law or discipHne. In such instances 
the act committed is an offense against the two jurisdictions and may 
legally subject the offender to be tried and punished under both.^ 

' See United States v. Perez 9 Wheat., 579. 

^ Grafton v. U. S. Althougn the same act when committed in a State might con- 
stitute two distinct offenses, one against the United States and the other against the 
State, for both of which the accused might be tried, that rule does not apply to acts 
committed in the Philippine Islands. The government of a State does not derive 
its powers from the United States, while that of the Philippine Islands does owe its 
existence wholly to the United States. (206 U. S., 334.) 

^ That an officer may be amenable to the civil and the military jurisdiction at the 
same time for the same act, see cases of Asst. Surg. Steiner and Capt. Howe, 6 Op. 
Atty. Gen., 413, 506. In the former case it is held that the "conviction or acquittal 
of an officer by the civil authorities of the offense against the general law does not 
discharge him from responsibility for the military offense involved in the same facts." 
In the latter case it is observed: "An officer may be tried by court-martial for the 
military relation of an act after having been tried by the civil authorities for the 
civil relations of the same act." And see 3 Op. Atty. Gen., 749, and 6 Op. Atty. Gen., 
413, 506. In a case published in G. C. M. O. 20, Hdqrs. of Army, 1869, an officer was 
charged with and convicted of "Conduct to the prejudice of good order and military- 
discipline," for the killing of a soldier, for which, as "manslaughter," he had previ- 
ously been acquitted by a civil court. And see cases in G. 0. 78, Dept. of the East, 
1869; G. C. M. O. 50, Dept. of the Missouri, 1871. See Grafton v. U. S. (206 U. S., 
333). 

In cases of double amenability, while — in view of the subordination of the military 
to the civil power — the civil jurisdiction is entitled to the preference, yet, in general, 
that jurisdiction which is first fully attached is ordinarily properly allowed to have the 
precedence in its exercise over the other. (See Ex parte McRoberts, 16 Iowa, 606; 
6 Op. Atty. Gen., 423; G. O. 25, Hdqrs. of Army, 1840.) 



I 



ARTICLES OF WAR CII C 1 a. 169 

R. 6, 140, Oct., 14, 1863; 4I, 187, Apr. 5, 1878; 43, 210, Feb. 17, 
1880; 49, 657, Jan. 18, 1886; P. 65, 268 and 269, June 30, 1894; C- 
6862, Aug. 7, 1899; 14851, July 19, 1903; 17017, Oct. 17, 1904.^ 

CII C 1 a. Where an officer who had killed a superior officer in an 
altercation at a military post was brought to trial before a civil court 
on a charge of murder and acquitted, and was subsequently arraigned 
before a court-martial for an offense against military discipline in- 
volved in his criminal Iict, Jield that a plea of former trial interposed 
by him was properly overruled by the court. P. 65, 268, ana 269, 
June, 1894; 0. 14851, July 13, 1903; 17017, Oct. 17, 1904. 

CII C 1 b. Held that the trial and acquittal of a soldier for murder 
by the civil authorities was not a bar to his subsequent trial and con- 
viction by a general court-martial for assault with a rifle and the 
infliction of a mortal wound on a fellow soldier.* C. 17402, May I4, 
1906. 

CII C 2. A soldier was convicted of "manslaughter," but the find- 
ings and sentence were disapproved. He was then brought to trial 
on a charge of mutiny, as committed on the occasion of the homicide, 
the latter being alluded to in the specification as an incidental cir- 
cumstance of aggravation, and was found guilty and sentenced. Held 
that the accused was not, in the sense of this article, "tried a second 
time for the same offense," the mutiny not consisting in the act of 
homicide but constituting a distinct offense. P. 26, 284, Sept., 1888. 

CII D. There can not, in view of this article, be a second trial 
where the offense is really the same though it may be charged under 
a. different description and under a different article of war. Thus, 
where the Government elects to try a soldier under the thirty-second 
article for "absence without leave," or under the forty-second for 
"lying out of quarters," and the testunony introduced develops the 
fact that the offense was desertion, the accused, after an acquittal or 
conviction, can not legally be brought a second time to trial for the 
same absence charged as a desertion. P. 34, 4OI ,Aug., 1889; C. 11025, 
Sept. 4, 1901; 19740, Mar. 6, 1907. 

CII E 1. It is not misrepresentation or concealment by an appli- 
cant for enlistment, but the procuring of his enlistment by means of 
misrepresentation or concealment, together with the receipt of pay 
or allowance, which constitutes the military offense of fi-audulent 
enlistment under the act of Congress approved July 27, 1892. (27 
Stat., 278). Held, therefore, where a soldier was tried for and con- 
victed of fraudulent enlistment in procuring his enlistment by means 
of a misrepresentation or concealment, that to again try him for the 

^ In re Stubbs, 133 Fed. Rep., 1012, in which the court said, quoting from the 
Byllabi: "Where a United States soldier killed a fellow soldier during a military- 
encampment, and on being surrendered to the civil authorities of the State was prose- 
cuted for murder and acquitted, such acquittal, though a final determination of his 
innocence of murder and of each lesser offense necessarily included therein, was no 
bar to his subsequent military arrest and trial by a general court-martial for ' conduct 
to the prejudice of good order and military discipline,' in violation of the sixty- 
second article of war (U. S. Comp. St. 1901, p. 957), though based on the same act. 

"A charge of assault with a rifle and the infliction of a mortal wound by accused upon 
a fellow soldier, with i>articulars of the time and place clearly stated, sufficiently 
alleged an offense within the sixty-second article of war (U. S. Comp. St. 1901, p. 
957), providing for trial and punishment of all crimes not capital, and all disorders 
and neglects which officers and soldiers may be guilty of to the prejudice of good order 
and military discipline." 



170 AETICLES OF WAR CII P. 

same enlistment on account of another misrepresentation or conceal- 
ment subsequently discovered would be a second trial for the same 
offense within the meaning of this article. 0. 2768, Nov., 1896 and 
Jan., 1897; 7668, Feh. 9, 1900; 11988, Feb. 6, 1902; 25703, Oct. 25, 
1909; 236U, July 8,1910. 

CII F. The reconsideration by a court-martial of a finding, whether 
of guilty or not guilty, when duly reconvened for that purpose, is not 
a second trial within the meaning of this article. The original and 
revised proceedings are merely parts of one and the same trial. ^ C. 
5654, July, 1899; 12177, Mar. 11, 1902. 

CII G. An opinion given by a court of inquiry is not in the nature 
of a sentence or adjudication pronounced upon a trial. The accused, 
upon a subsequent trial, by court-martial, of charges investigated by 
a court of inquiry, can not plead the proceedings or opinion of the 
latter as a former trial, acquittal, or conviction. R. 16, 389, July, 
1865; 29, 98, July, 1869. _ 

CII H 1 . Wliere a soldier on duty as sentinel at a military reserva- 
tion commits homicide to prevent prisoners from escaping or in self- 
defense in the discharge of his duty, held that it is to the advantage 
of both the military service and the soldier th^t he first be tried by a 
military court, to attain which it is necessary that v. military juris- 
diction vest before the civil courts have assumed jurisdiction,^ and 
that whenever a soldier commits an offense which is liable to cause a 
civU court to take action and the offense is one which may be excused 
as one mvolved in the performance of a military duty, charges be 
immediately formulated and lodged with the proper authority with a 
view to vesting military jurisdiction, subject to such later action 
as may be necessary.^ u. 21694, June 18, 1907. 

1 See 6 Op. Atty. Gen., 200, 204; 7 id., 338; 18 id., 113;Swaim v. U. S., 165 U.S., 553. 

2 Grafton v. U. S., 206 U. S., 333, in which the court said, quoting from the syllabus: 
"The prohibition of double jeopardy is applicable to all criminal prosecutions in the 
Philippine Islands. 

"A person is not put in second jeopardy unless his prior acquittal or conviction was 
by a court having jurisdiction to try him for the offense charged. 

"The judgment of a court-martial having jurisdiction to try an officer or soldier for 
a crime is entitled to the same finality and conclusiveness as to the issues involved as 
the judgment of a civil court in cases within its jurisdiction is entitled to. 

"General courts-martial may take cognizance, under the sixty-second article of war, 
of all crimes, not capital, committed against public law by an officer or soldier of the 
Army within the limits of the territory within which he is serving; and, while this 
jurisdiction is not exclusive, but only concurrent with that of the civil courts, if a 
court-martial first acquires jurisdiction its judgment can not be disregarded by the 
civil courts for mere error, or for any reason not affecting the jurisdiction of the court 
rendering it. 

"The same acts constituting a crime against the United States can not, after the 
acquittal or conviction of the accused in a court of competent jurisdiction, be made 
the basis of a second trial of the accused for that crime in the same or in another court, 
civil or military, of the same government. 

"Although the same act when committed in a state might constitute two distinct 
offenses, one against the United States and the other against the State, for both of 
which the accused might be tried, that rule does not apply to acts committed in the 
Philippine Islands. The government of a State does not derive its powers from the 
United States, while that of the Philippine Islands does owe its existence wholly to 
the United States. 

"A soldier in the Army, having been acquitted of the crime of homicide, alleged 
to have been committed by him in the Philippine Islands, by a military court-martial 
of competent jurisdiction proceeding under authority of the IJnited States, can not be 
subsequently tried for the same offense in a civil coiu*t exercising authority in that 
Territory. ' ' 

2 Army Regulation 970, of 1910. 



U 



ARTICLES OF WAR CII H 2. 171 

CII H 2 . Wliere a sentinel has committed homicide in the execu- 
tion of his duty by firmg upon an escaping prisoner and accidentally 
killmg a third person, for which he was subsequently acquitted by a 
general court-martial, in which jurisdiction had vested, Tield that it is 
within the power of the civil authorities of the State to assume juris- 
diction, and surrender of custody should be made on demand of such 
authority, and the right of the State authorities to hold the soldier 
should be raised on writ of habeas corpus * in a United States court. 
C. 2194, Aug. U, 1907. 

CII I, Where a soldier of the Philippine Scouts made an assault 
upon a Chino, for which he was tried, convicted, and punished by a 
summary court, and subsequently a formal demand was made upon 
his commanding officer for liis surrender to the civil authorities, held 
that the fifty-ninth article of war was applicable to the case, and that 
the question as to whether or not the soldier was subject to the juris- 
diction of the civil court, from which the warrant of arrest issued, 
was a judicial one which could not be decided by the post commander, 
and that he should have surrendered the offender instead of returning 
the warrant with the information that he had been tried by a regu- 
larly constitued military tribunal having jurisdiction of the offender 
described in the warrant, leaving the question of double jeopardy to 
be raised before the proper civil tiibunal. G. 21694, Aug. I4, 1908. 

cm A. The "order for such trial," within the meaning of this arti- 
cle, is the reference of the charges to the court for trial, and not the 
order appointing the court. C. I646, Aug., 1895. 

cm B 1. The mere fact that the offense was concealed by the 
accused and remained unknown to the military authorities for more 
than two years constitutes no "impedunent" in the sense of the 
article.2 R. 21, 635, Sept., 1866; 50, 633, Aug., 1886; C. 18605, Sept. 
22, 1905; 23644, July 8, 1910. 

cm B 2. A mere allegation in a specification, to the effect that the 
whereabouts of the offender was unknown to the military authorities 

' See U. S. V. Lipsett, ex parte Gillette, 156 Fed. Rep., 65, in which the court said, 
quoting from the syllabi: "Under R. S. sees. 752, 753, 761 (U. S. Comp. St. 1901, pp. 
592, 594), a court or judge of the United States has power to issue a writ of habeas 
corpus on petition of the United States for the purpose of an inquiry into the cause of 
detention of a prisoner held by a State to answer to a criminal charge, where it is alleged 
by the petitioner that the act charged as a crime was committed by the prisoner in the 
performance of his duty as a soldier of the United States; and it has authority to 
determine summarily as a fact whether or not such allegation is true, and, if found to 
be true, to discharge the prisoner on the ground that the State is without jurisdiction 
to try him for such act." 

"A soldier in the service of the United States was placed on guard over prisoners and 
furnished with a gun and ammunition. By the manual of guard duty, with which 
he was familiar, it was made his duty if a prisoner attempted to escape to command 
him to halt, and if he failed to do so, and there was no other possible means to prevent 
his escape, to fire upon him. One of the prisoners started to run away down a public 
street, and the guard pursued, calling on him to halt, to which no attention was paid. 
The guard, being lame, was unable to overtake the prisoner, and after reaching a place 
where the street was apparently clear fired upon him, but the bullet went over his 
head and struck and killed a young woman who was walking with others in the street 
upon higher ground and was not seen by the guard. He fired again at the prisoner, 
but the latter escaped temporarily. There was no claim that the killing was inten- 
tional, or that the guard acted maliciously or wantonly, or otherwise than in good faith. 
Held, that under such facts the guard in shooting was acting in the supposed perform- 
ance of his duty as a soldier, and was not subject to arrest and trial for manslaughter 
by the State." 

2 14 Op. Atty. Gen., 52, 266-268. 



172 ARTICLES OF WAR CUT C. 

during the interval of more than two years which had elapsed since 
the ouense is not a good averment of a "manifest impediment" in the 
sense of the article. ^ R. 35, 6^0, Oct., 1874. 

cm C. The liability to trial after discharge, imposed by the last 
clause of article 60, held subject to the limitation prescribed in article 
103.* R. 12, 481, 636, July and Aug., 1865; 15, 133, Apr., 1865; 
21, 4, Nov., 1865; 26, 670, July, 1868. And so held as to the liability 
to trial after the expiration of the term of enlistment, under article 48. ^ 
R. 31, 384, May, 1871.^ 

cm D. The limitation is properly a matter of defense to be spe- 
cially pleaded and proved.^ P. 21 , 156, Dec, 1887; 40, 476, May, 1908; 
59, 278, May, 1893; 65, 346, June, 1894; C. 17950, Oct. 22, 1906. By a 
plea of guilty the accused is assumed to waive the right to plead the 
limitation by a special plea in bar. R. 56, 75, Apr., 1888. But under 
a plea of not guilty the limitation may be talcen advantage of by 
ev%dence showing that it has taken effect. P. 21, 156, supra; 55, 266, 
Sept,, 1892;' C. 16172, Apr. 12, 1904; 16122, Apr. 13, 1904; 16254, 
May 8, 1904; 16859, Sept. 7, 1904; 17034, Oct. 21, 1904; 16607, Nov. 
18, 1905; 17950, Oct. 22, 1906; 22784, Sept. 13, 1909. 

cm E. By the absence referred to in the original article, in the 
term — "unless by reason of having absented himself" — is intended, 
not necessarily an absence from the United States, but an absence by 
reason of a "fleeing from justice," analogous to that specified in sec- 
tion 1045, R. S., which has been held to mean leaving one's home, 
residence or known abode within the district, or concealing one's 
self therein, with intent to avoid detection or punishment for the 
offense against the United States.^ Thus lield that, in a case other 
than desertion, it was not essential for the prosecution to be prepared 
to prove that the accused had been beyond the territorial jurisdiction 
of the United States in order to save the case from the operation of 
the limitation. P. 58, 268, Mar., 1893; 64, 137, and 151, Mar., 
1894; C. 15607, Dec. 11, 1903; 16064, Mar. 22, 1904; 16122, Mar. 
23, 1904; 16172, Apr. 12, 1904; 16254, May 3 and 26, 1904; 17034, 
Oct. 21, 1904, and May 12, 1905; 18023, May 19, 1905; 18137, June 
9, 1905; 18605, Sept. 22, 1905; 18812, Nov. 7, 1905; 19374, May 16, 
1906; 21367, Apr. 12, 1907; 21760, July 9, 1907; 21829, July 22, 
1907; 12563, Sept. 30, 1907, and July 30, 1909; 22874, Feh. 27, 1908; 
15257, Mar. 10, 1908, and May 4, 1910; 23034, Apr. 3, 1908; 22784, 
July 10, 1909; 8287, Nov. 23, 1909; 20754, Apr. 29, 1910. 

cm F 1. Prior to the amendment of the One hundred and tliird 
article of war by the act of April 11, 1890 (26 Stat., 54), it was held 
that the statute of limitation began to run in a case of a desertion only 
upon the return of the deserter to military control. It is now held 
that the act of April 11, 1890, cited above, operates to cause the statute 
of limitation to begin to run at the end of the term for which the soldier 

1 14 Op. Atty. Gen., 52. 

2 See, to a similar effect, 13 Op. Atty. Gen., 462; 15 id., 152; 16 id., 170; also, In re 
Bird, 2 Sawyer, 33. 

3 In re Bogart, 2 Sawyer, 396, 397; In re White, 17 Fed. Rep., 723; In re Davison, 
21 Fed. Rep., 618; In re Zimmerman, 30 Fed. Rep., 176; G. O. 22 of 1893. And com- 
pare U. S. V. Cooke, 17 Wallace, 168. 

<SeeXIIComp. Dec, 276. 

«U. S. V. O'Brien, 3 Dillon, 381; U. S. v. White, 5 Cranch C. C, 38, 73 (Fed. 
Cas., 16675); Gould & Tucker, Notes on Revised Statutes, 349. 



ARTICLES OF WAR CIII F 2. 173 

was enlisted or mustered into the service. G. Ji.130, Maij 17, 1898; 
12563, May 6, 1902 and Sept. 30, 1907; 28321, May 8, 1911. 

CIII F 2. Held that the statute of limitations does not run in the 
case of desertion in time of war. C. 11850, Jan. 6, 1902; 13532, Oct. 
23, 1902; 16064, Mar. 22, 1904; 16254, May 3, 1904; 16859, Sept. 7, 
1904; 17034, Oct. 21, 1904; 17439, Jan. 6, 1905; 17609, Mar. 1, 1905; 
18023, May 20, 1905; 23070, Apr. 10, 1908. 

CIII F 2 a. A soldier deserted November 17, 1900, from the Ninth 
United States Infantry, which was then a part of the force with which 
the United States was making war in Chmese territory. The active 
operations against the enemy began June 20, 1900, when the admirals 
of certain powers issued a proclamation announcing that they intended 
to use force against the Boxers, and the hostile operations ended 
May 12, 1901, when the commanding general, China Relief Expe- 
dition, issued an order relieving the American forces from further 
service, in Cliina. Held that although war was not declared nor a 
treaty of peace ratified, nevertheless a condition of war existed, and 
that as tliis soldier was a deserter in time of war he was not entitled 
to the benefit of the statute of limitation provided in the one hundred 
and tliird article of war. 0. 17609, Mar. 22, 1905. 

CIII F 3. A soldier deserted, was con\'icted, and given a sentence 
less than dishonorable discharge. At a date previous to the expira- 
tion of liis term of enlistment he a'gain deserted. Held that the stat- 
ute of limitations began to run, as to the second desertion, two years 
after the offense had been committed plus the length of time from the 
date of the second desertion to the end of liis term of enlistment. 0. 
15257, May 4, and Oct. 20, 1910. 

CIII F 4. A soldier deserted, was convicted, and given a sentence 
less than dishonorable discharge. After he had been returned to 
duty, and at a date subsequent to the expiration of his term of enlist- 
ment, and while making good the time lost in the first desertion, he 
again deserted. At Ms trial for the second desertion it was claimed 
that the statute of limitations had run. Held that the statute of limi- 
tations did not begin to run as to the second desertion until the sol- 
dier had made good under the forty-eighth article of war the time 
lost in desertion.! C. 15257, Jan. 28, 1909. _ 

CIII F 5. The one hundred and third article of war, which is the 
statute of limitations, contains the provision that: "No person shall 
be tried or punished by a court-martial for desertion in time of peace 
and not in the face of an enemy. ' ' Held that the words ''in time of 
peace and not in the face of an enemy ' ' refer to a situation in which 
the United States, although not at war, is confronted with warlike 
conditions and has an enemy, and that, therefore, the statute of limi- 
tations will run at that time in the case of a desertion which was not 
in the presence of such enemy. C. 17034, Oct. 20, 1904- 

Similarly held that that phrase applies to conditions which exist 
when the country at large is at peace, but when portions of its armed 
forces are confronting strikers, rioters, or are engaged in active opera- 
tions as the result of an Indian outbreak. 0. 17294, Dec. 24, 1904- 

CIII F 6. A soldier deserted and was for a considerable time there- 
after continuously employed on an Army transport. The question 

* See XII Comp. Dec. 592, Apr. 7, 1906. If arrested after expiration of term, time 
in confinement or while serving sentence is not military service and can not be counted 
to make good time lost under the forty-eighth article of war. 



174 ARTICLES OF WAR CIII G. 

was raised as to whether or not he had absented himself from the 
United States as those words are used in the one hundred and third 
article of war. Held that absence from the United States under the 
one hundred and third article of war means absence from the juris- 
diction of the United States, and that absence from the geographical 
limits of the United States on a Government vessel would not be such 
absence from the United States as is contemplated by the statute, 
particularly where the deserter passed under the same name as that 
wliich he bore when he enlisted and deserted, as in tliis case. C. 21760, 
July 9, 1907; 28321, May 11,1911. 

CIII G. Held that the one hundred and third article of war applies 
to escape, as escape is not a continuing offense. C. 227 8 J,., Mar. 11, 
1908. 

CIII H. Held that in cases of fraudulent enlistment, except those 
of enlistment without a discharge from a ])revious enlistment, the 
limitation provided in the one hundred and third article of war begins 
to run from the date of receipt of last ^?ij or allowances. C. 13322, 
July 6, 1911. 

CIV A 1. The approval of the sentence indicated by tliis article 
should properly be of a formal character. An indorsement, signed 
by the commander, of the single word "approved" — a form not 
unfre(juently employed during the Civil War— though, strictly, suffi- 
cient m law {R. 26, 511, Apr., 1868), is irregular and objectionable. 
So, lield that a mere statement, written in or upon the proceedings, 
in transmitting them to the President, that the record was ''for- 
warded" for the action of superior authority, was insufficient as not 
implying the requisite approval according to the article. R. 2, 99, 
Mar., 1863; 7, 1^76, Apr., 1864- And similarl}^ lield of a mere recom- 
mendation that the proceedings be approved by such authoritv. 
R. 9, 50 and 5^, May, 1864; G. 2844, Jan., 1897. The article requires 
the sentence to be "approved." Held, therefore, where a sentence 
had been duly adjudged, that a formal approval of the "findings" 
only did not meet the requirement of the article. C. 5095, Oct., 1898. 

CIV A 2. This article is properly to be complied with by an 
approval of the sentence (where the same is api)roved in fact) by ' ' the 
officer ordering the court," etc., although — as in a case of a sentence 
of dismissal in time of peace — he may not be empowered _^7? a % to 
confirm and give effect to the sentence. His approval is required as 
showing that he does not, as he is authorized to do, disapprove. R. 9, 
15, May, I864. 

CIV B. Wliere the men who had been tried by a general court- 
martial had passed with their command from the department in which 
they had been tried before action had been taken on their cases by 
the reviewing authority, lield that the commanding general of the 
department in which they had been tried was the proper reviewing 
authority for the cases. C. 4942, Sept 9, 1898; 7166, Oct. 13, 1899. 

CIV C 1. The "officer commanding for the time being," indicated in 
this article, is an officer who has succeeded to the command of the 
officer who convened the court; as where the latter has been regu- 
larly relieved and another officer assigned to the command; or where 
the command of the convening officer has been discontinued, and 
merged in a larger or other command, at some time before the pro- 
ceedings of the court are completed and require to be acted upon. Thus 
where, under these circumstances, a separate»^ brigade has ceased to 



ARTICLES OF WAR CIV C 1 a. 175 

exist as a distinctive organization and been merged in a division,' or a 
division lias been similarly merged in an army or department, the com- 
mander of the division in the one case and of the army or department 
in the other, is "the officer commanding for the time being," in the 
sense of the article. R. 8, 633, July, 1864; 9, 621 , Se'pt., 1864; 13, 298, 
Jan., 1865; 20, 153 and 194, Nov., 1865; G. 5231, Oct., 1898; 5274 and 
5294, Nov., 1898; 5471, Bee, 1898; 10849, July 17, 1901; 12210, Mar, 
14, 1902; 16710, Jan. 20 and July 29, 1908; 25832, Mar. 4, 1910. 

CIV C 1 a. When the officer who convened a court-martial and 
referred a case to trial before it was succeeded by another officer, held 
that the latter when acting as reviewing authority should indicate on 
the proceedings that he had succeeded to the command of the officer 
who convened the court. C. 5078, Sept. 29, 1898; 5079, Sept. 29, 
1898; 5080, Sept. 29, 1898; 10849, July 16, 1901; 16710, Aug. 9, 1904. 

CIV C 1 b. Held that it is not necessary that the "officer command- 
ing for the time being" should be of the rank required of a convening 
officer. All that is required in order that he may lawfully act upon 
a record of trial is that he succeeds lawfully to the cormnand. C. 
10849, July 16, 1901; 11796, Dec. 19, 1901; 16710, Aug. 9, 1904, Feb. 
8 and Mar. 2, 1908. 

CIV C 2. A court was convened by division commander, but before 
the reviewing authority had acted upon the sentence the division was 
discontinued and the organizations cornposing it were distributed 
among the divisions of another corps. Held that the commander of 
this other corps was the officer "commanding for the time being," 
and therefore the proper reviewing officer. C. 5231, Oct. 31, 1898; 
5274, Nov. 9, 1898; 5294, Nov. 8, 1898; 5471, Dec. 7, 1898; 5473, 
Dec. 8, 1898; 16710, Mar. 20, 1906. 

CIV C 3. Wliere a separate brigade was merged in a division, ad- 
vised that a court convened by the commander or the separate brigade 
need not be dissolved on account of the merger, but may legally try 
all the cases which have been referred to it, the division commander 
becoming the reviewing authority. G. 5151, Oct., 1898. 

CIV C 4. Wliere, before the proceedings of a garrison court con- 
vened by a post commander were completed, the post command had 
ceased to exist and the command become distributed in the depart- 
ment, held that the department commander, as the legal successor of 
the post commander, was the proper authority to approve the sen- 
tence under this article. R. 42, 48 Nov., 1878; G. 16800, Aug. 25, 
1904. 

CIV C 5 a. Held that the illness of a department commander is a 
"disabihty" under which the senior line officer present and on duty 
in the department is the "officer commanding for the time being" 
within the meaning of the one hundred and fourth article of war. G. 
10849, July 16, 1901. 

CVI A. Held that a department commander can confirm a sentence 
of dismissal of an officer and order its execution while a state of war 
continues.! G. 5860, Feb. 11, 1899: 6240, Apr. 12, 1899; 8197, May 
3, 1900; 10002, Mar. 18, 1901; 12184, Mar. 12, 1902; 15754, Dec. 23, 
1903. 

CVII A. Held that when a division or separate brigade does not 
belong to a separate army in the field, the President of the United 

' As to general oflB.cers, see article 108. 



176 ARTICLES OF WAR CXI A. 

States is the proper confirming authority within the meaning of the 
one hundred and seventh article of war. C. 4980, Sept., 1898; 10910, 
Aug. 17, 1901. 

CXI A. Under this article a reviewing authority should first for- 
mally approve the sentence, as forwarding the record for the action 
of the President without such approval would be incomplete and 
irregular. R. 4, 337, Nov., 1863; 9, 15, May, I864. ^eM, however, 
that when a record reached the President without any action of the 
reviewing authority being recorded thereon he veiy properly regarded 
it as having reached him under the one hundred and eleventh article 
of war. C. 12251, Mar. 19, 1902. Held i\mi the President may, 
when a record reaches him under the operation of this article approve 
or disapprove the sentence in whole or in part and may exercise the 
usual power of remission or mitigation. K. 3, 492, Aug., 1863; 7, 
594, Apr., 186 4. 

CXIIAl. A military commander vested with the power of pardon 
or mitigation under tins article is not authorized to delegate the same 
to an inferior. Thus lield that a department commander could not 
legally authorize a post commander to remit in part, upon good 
behavior, the punishment of a soldier under sentence at the post of 
the latter, who had been convicted by a general court, convened, and 
whose proceedings had been acted upon, by the former. R. 33, 119, 
June, 1872; 0. 11028, Aug. 16, 1901. 

CXII Ala. Held that a reviewing officer other than the President 
was not empowered by this article to commute a ])unishment; that 
the "pardon" here specified was remission, which, unlike the pardon- 
ing power vested in the President, did not include commutation or 
conditional pardon. So, held that a reviewing commander was not 
authorized to commute the punishment of dishonorable discharge, 
and that, as such punishment was not susceptible of mitigation, it 
could not legally be reduced under this article. R. 48, 666, Jan., 
1885; 57, 89, Oct., 1888; P. 32, 4OI, May, 1889; 34, 237, Aug., 1889; 
C. 5887, Feb., 1899; 21390, Apr. 16,^ 1907. 

CXII A 1 a (1). The power to remit or commute sentences of death 
(and dismissal in case of an officer) remains with the President. A 
mditary commander can not exercise such power even where, in time 
of war, he is authorized to approve and execute the sentence. Held, 
therefore, that the action 01 a department commander in directing 
the commutation of a sentence of death was a nullity, but that such 
action might be regarded as a recommendation to be considered by 
the President.^ R. 2, 67, Mar., 1863; C.mi3, Mar. 13, 1902. 

CXII Alb. The order prescribing maximum punishments was not 
intended to and does not affect the established principle that the 
reviewing authority, in the exercise of his power of mitigation, can not 
change the kind of punishment. The power of substitution which 
may be exercised by the court under the order has no relation to the 
power of the reviewing officer. Thus held that the substitution b}'" 
the reviewing officer of confinement for forfeiture, though the period 
of confinement proposed were loss than the court could have substi- 
tuted, would not be legal mitigation. C. 2381, Ju7ie 20, 1896; 2751, 
Nov. 18, 1896; 3487, Sept., 1897; 3850, Feb. 7, 1898; 5887, Feb. 18, 
1899. 

iSeeGOp. Atty. Gen. 123'. 



AETICLES OF WAR CXII A 1 C. 177 

CXII Ale. The pardoning power under the one hundred and 
twelfth article of war is not limited in its exercise to the moment of 
the approving of the sentence, but may be emj^loyed as long as there 
remains any material for its exercise.^ R. 5, 71, Sept. 30, 1863; 6, 35, 
Mar. 21, 1864; 8, 582, June 20, 186 4; 21, 49, Nov. 21, 1865; 26, 463, 
Feb. 20, 1868; 27, 243, Sept. 21, 1868; C. 10393, June 10, 1901; 14678, 
May 18, 1903; 16552, July 6, 1904; 16710, July 27, 1908; 18467, 
Aug. 23, 1905; 21705, Aug. 20, 1907. 

CXII A 1 c (1). A military prisoner sentenced to confinement in a 
penitentiary or in the United States military prison or any branch 
thereof will, so far as concerns the exercise of clemency, be considered 
to have passed beyond the jurisdiction of a diAdsion or department 
commander from the date of the approval of his sentence without 
regard to the fact of liis being temporarily retained within the com- 
mand of such division or department commander pending transfer 
to penitentiary or to the United States military prison or any branch 
thereof. C. 21 705, June 1 9, 1 907; 1 671 0, July 29, 1 908. AU punish- 
ments of confinement in a penitentiary, where legal, may, however, 
at the time of action on the case by the reviewing authority, be miti- 
gated to confinement in a military prison or at a military post. P. 29, 
209, Jan., 1889. 

CXII B. The reviewing authority, in approving the punishment 
adjudged by the court and ordering its enforcement, is authorized, 
if he deems it too severe, to graduate it to the proper measure b^ 
reducing it in quantity or quality, without changing its species: this 
is mitigation. R. 37, 22, June, 1875; 41, 518,^ Mar., 1879. ^ Impris- 
onment, fine, forfeiture of pay, and suspension, are punishments 
capable of mitigation. As an instance of a mitigation both in quan- 
tity and quality, held that a sentence of imprisonment for three years 
in a penitentiary was mitigable to an imprisonment for two years in a 
military prison. R. 41, 518, supra; C. 21390, Apr. 16, 1907. 

CXII C. A punishment in itself illegal is not capable of mitigation. 
Thus where a sentence of imprisonment in a penitentiary is not legaUy 
authorized, it can not be made valid by mitigating this imprisonment 
to confinement in a military prison. In such case the latter will be 
equally invalid and inoperative with the original punishment.^ P. 29, 
209, Jan., 1889; 43, 151, Oct., 1890; 53, 181, Apr., 1892. 

CXII D. Held that a sentence of dishonorable discharge by a court- 
martial can not be commuted or mitigated to confinement or forfeit- 
ure by the reviewing authority except the President. . C. 2751, Nov. 
18, 1896; 5887, Feb. 20, 1899. 

CXII E. Where the station of a soldier who is undergoing sentence 
imposed by an inferior court is changed, held that the power to miti- 
gate the sentence passes to the new post commander. C. 10393, 
June 10, 1901. 

1 See G. 0. 167 A. G. 0., Dec. 31, 1901. 

See par. 958, A. R., Ed. 1910, which requires that an application for clemency in 
case of a prisoner sentenced to confinement in a penitentiary or in the United States 
military prison or any branch thereof will be forwarded to The Adjutant General of 
the Army for the action of the Secretary of War and the President. 

See also 19 Op. Atty. Gen., 106, Feb. 27, 1888. 

^ But see A. R. 981 of 1910, which provides that when a penitentiary has been 
erroneously designated in the sentence the reviewing authority may disapprove that 
portion of the sentence and designate a proper place. 

93673°— 17 13 



178 ABTICLES OF WAR CXIV A. 

CXIV A. Under the one hundred and fourteenth article of war and 
the practice of the War Department, every person tried by a general 
court-martial or by a military commission is entitled to one copy of 
the record of proceedings in his case upon demand therefor made b^ 
him or by any person in his behalf {C. 6606, June 15, 1899) before his 
decease. R. 56, 17, Mar., 1888; P. 25, 188, June, 1888. The appli- 
cation should, in the first instance, be addressed to the Judge Advocate 
General, and if not made by the accused himself, should exliibit satis- 
factory evidence that the applicant represents the accused, as a person 
other than the accused, applying on his own account, is not entitled 
to a copy. R. 3, 348 and 409, Aug., 1863; 19, 318, Jan., and 459, 
Mar., 1866; 21, 12 and 583, Nov., 1865, and Aug., 1866; 31, 499, 
July, 1871; 37, 106, Nov., 1875; C. 26559, Apr. 20,1910. Held that 
otherwise than as above a copy of a court-martial record can be 
secured only by order of the Secretary of War. R. 19, 635, May, 
1866; 31, 449, July, 1871; 37,' 106, Nov., 1875. The report of the 
Judge Advocate General will not be furnished under the one hun- 
dred and fourteenth article of war. R. 19, 657, June, 1866; 32, 54, 
Oct., 1871. 

CXV A. Held, that neither the President nor a commanding officer 
is obliged to order a court of inquiry on the application of an officer. 
C. 18772, Oct. 26, 1905; 23059, May 12, 1908; 20754, Mar. 12, 1909; 
27472, Nov. 9, 1910. And in a case where an officer requested a court 
of inquiry, and it was apparent that the real purpose of the request 
was to secure an opinion by the court of inquiry on a question of 
infringement of patent, Jteld that it was not a proper subject for a 
court of inquiry. C. 25188, Jan. 20, 1912. 

CXV B. The court of inquiry authorized by the one hundred and 
fifteenth article of war can examine into the nature of transactions of 
officers or enlisted men only.^ R. 1, 395, 402, Nov., 1862; 19, 71, Oct., 
1865; 27, 601, Apr., 1869; 38, 210, Aug., 1876; 39, 619, Aug., 1878; 
51, 263, June, 1878. The accused appears and examines witnesses 
before such a court as freely as before a court-martial. The proceed- 
ings of a court of inquiry may be open at the discretion of the court.^ 
R. 28, 586, May, 1869. 

CXIX A. Wliere, as in the majority of cases, the inquiry is instituted 
with a view of assisting the determination by the President, or a mili- 
tary commander, of the question whether the party should be brought 
to trial, the opinion of the court will properly be as to whether further 
proceedings before a court-martial are called for in the case, with the 
reasons for the 'conclusions reached. Wliere no such view enters into 
the inquiry, but the court is convened to investigate a question of 
military right, responsibility, conduct, etc., the opinion will properly 
confine itself to the special question proposed and its legitimate mili- 
tary relations. A court of inquiry, composed as it is of military men, 

* A court of inquiry is not a court in the legal sense of the term, but rather a board. 
It takes no pleadings, and its proceedings are not a trial of the guilt or innocence of the 
accused, nor does it come to a verdict or pass sentence. (1 Winthrop's Mil. Law, 
chap. 24.) 

2 Although the challenge of members of a court of inquiry is not specifically provided 
for, yet in the interest of justice it is generally allowed. (See Macomb, sec. 204; 
O'Brien, 292; 1 Hart, 278.) See S. Doc. no. 701, 61st Cong., 3d sess., which publishes 
the proceedings and conclusions of the Brownsville Court of Inquiry. That Court of 
Inquiry had jurisdiction by the act of Mar. 3, 1909 (35^Stat. 836), to make eligible for 
reenlistment men who had been discharged without honor. 



ARTICLES OF WAR CXIX B. 179 

will rarely find itself called upon to express an opinion upon questions 
of a purely legal character.^ R. 16, 389, July, 1865; G. 23277, Oct. 27, 
1908. 

CXIX B. WliUe it is of course desirable that the members of a court 
of inquiry, directed to express an opinion, should concur in their con- 
clusions, they are not required to do so by law or regulation.^ The 
majority does not govern the minority as in the case of a finding or 
sentence by court-martial. If a member or a minority of members 
can not conscientiously and without a weak yielding of independent 
convictions agree with the majority, it is better that such member 
or members should formally disagree and present a separate report 
(or reports) accordingly. The very disagreement indeed of intelligent 
minds is a material and important fact in the case, and one of which 
the reviewing author! t}^ is entitled to have the advantage in his con- 
sideration of and action upon the same. R. 1^.1, 207 , Apr., 1878. 

CXXI A. Wliile the proceedings of a court of inquiry can not be 
admitted as evidence on the merits upon a trial before a court-martial 
of an offense for which the sentence of dismissal will be mandatory 
upon conviction,^ yet lield that upon the trial of such offense, as upon 
any other, such proceedings, properly authenticated, would be admis- 
sible in evidence for the purpose of impeaching the statements of a 
witness upon the trial who, it was proposed to show, had made quite 
different statements upon the hearing before the court of inquiry.* 
R. Jt3, 339, June, 1880. 

CXXII A. Officers of the Marine Corps traveling without troops 
on Army transports can not exercise command of the troops on 
board in the operation of this article or exercise command in the 
Army at any time unless duly assigned thereto bv the President.^ 
C. 20461, Oct. 3, 1906; 22905, Mar. 17, 1908; 24712, Apr. 2, 1909; 
25586, Oct. 9, 1909. 

CXXII B. The command at joint encampments of the Regular 
Army and Organized Militia remains with the regular post commander 

^ In an exceptional case, that of the special court of inquiry authorized by Congress 
in the joint resolution of Feb. 13, 1874, the court was required to express an opinion 
not only upon the "moral," but upon the "technical and legal responsibility" of 
the officer for the "offenses" charged. It is not irregular, but authorized, for a court 
of inquiry, in a proper case, to reflect, in connection with its opinion, upon any 
improper language or conduct of the accused, prosecuting witness, or other person, 
appearing before it during the investigation. Thus, the court of inquiry on the con- 
duct of the Seminole War, adverted, in its opinion, unfavorably upon certain offensive 
and reprehensible language employed against each other by the two general officers 
concerned, the one in his statement to the court, and the other in his official commu- 
nications which were put in evidence. (See G. O. 13, Hdqrs. of Army, 1837.) 

-In the case of the court of inquiry (composed of seven general officers), on the 
Cintra convention, in 1808, the members who dissented from the majority were 
required by the convening authority to put on record their opinions, and three dis- 
senting opinions were accordingly given. A further instance, in which two of the 
five members of the court gave each a separate dissenting opinion, is cited by Hough 
(Precedents), 642. Mainly upon the authority of the former case, both Hough (Prece- 
dents), 642, and Simmons, sec. 339, hold that members nonconcurring with the 
rnajority are entitled to have theii" opinions reported in the record. In the Browns- 
ville case see S. Doc. no. 701, 61st Cong., 3d sess., the court was unanimous as to some 
of its conclusions, but as to others, the record states that certain members did not 
concur. 

^ Compare G. O. 33, Dept. of Arizona, 1871. 

^ See this ruling published, as adopted by the President, in G. C. M. 0. 40, Hdqrs. 
of Army, 1880. See also G. C. M. 0. 88, Navy Dept., 1895. 

^ See 28 Op. Atty. Gen., 15. 



180 ARTICLES OF WAR ASSIGNMENT. 

without regard to rank of senior officer of the Organized Militia. G. 
14.148, May 14, 1910; 25586,^ Feh. 3, 1910. 

CXXVI A. Held that it is within the discretion of a company 
commander under the one hundred and twenty -sixth and one hun- 
dred and twenty-seventh articles of war to convert into cash the 
effects left by a deceased soldier. He is then required to pay over 
to the personal representatives of the deceased the proceeds of the 
sale, and if expense is incurred by the sale it must be defrayed out 
of the sum realized. After such expense is deducted, the result will 
be the "net proceeds," which is the term referred to in the Army 
Regulations. C. 18500, Sept. 5, 1905. 

CXXVII A. This article, in connection with the two preceding 
articles, provides for the securing of the effects of deceased officers 
and soldiers, making inventory of the same, and accounting for them 
to the proper legal representative, etc. These articles have special 
reference to cases of deaths of military persons while in active service 
in the field or at remote military posts, and their provisions apply 
only to such effects as are left by the deceased ''in camp or quar- 
ters." An attempt by the commander, etc., to secure effects left 
elsewhere would not be within the authority here given, and might 
subject the officer to the liability of an administrator; such a pro- 
ceeding would not therefore be advisable. Upon accounting to the 
duly qualified legal representative, as directed in the article, the 
responsibility of the officer is discharged, and it remains for the rep- 
resentative to dispose of the property according to the law applicable 
to the case. R. 43, 266, Mar., 1880. 

CXXVII B. Held that the term "legal representatives," as em- 

Eloyed in the one hundred and twenty-seventh article of war, is to 
e construed as equivalent to duly appointed legal personal repre- 
sentative, i. e., the duly appointed executor or administrator of the 
estate of the deceased. C. 29333, Dec. 27, 1911. 

CROSS REFERENCE. 

Construction of Articles of War See Laws I B 7 a. 

ASSAULT AND BATTERY. 

See Articles of War LXII D. 

ASSAULT WITH INTENT TO KILL. 

See Articles of War LXII B. 

ASSIGNEE. 

Execution of contract by See Contracts I B 2. 

ASSIGNMENT. 

Bonds See Bonds III C. 

Contracts See Contracts XIV to XV. 

Franchise See Navigable Waters III C to D. 

Lease See Public Property VII A 1. 

License See Public Property VIII A 2 to 3. 

Patent right See Patent III; III A. 

Pay account . . See Pay and Allowances I B 1. 

Secretary of War See Army I B 2 a (1). 

To duty according to brevet rank See Rank IV B to C. 



ASYLUM — BADGES. 181 

ASYLUM. 

Admission to See Insanity I B 2. 

ATHLETICS. 

Line of duty slatusi See Gratuity I A 5 a. 

See Claims VIII. 

ATTORNEY. 

Claim for service as counsel See Claims XII C. 

Officer as See Claims X. 

ATTORNEY GENERAL. 

Allotving completion of work See Bonds V H. 

Requests on See Desertion III A. 

Discipline IV B 4 a 

Army I B 5 a b; G 3 b (2) (a) [3] [c] 

Claims XII M. 

AUCTIONEER. 

Employment of See Public Property IX A 2 c. 

Payment of See Articles of War LXII 4. 

Soldier as See Pay and Allowances I C 6 b. 

AUTHENTICATION. 

By President See Discipline XIV H I a. 

£y Secretary of War for President See Army I B 1 a (1); (2) 

By reviewing authority See Discipline XIV E 9 m. 

By judge advocate See Discipline IV C 3 b (1) to (4). 

By indorsement See Discipline VII B 1. 

Of proceedings See Discipline IX M 

Official papers See Discipline XI A 17 a (2) (a) [1] [a]. 

AUTHOR. 

May copyright his worh See Copyright I. 

AUTHORITY. 

Delegation of See Articles of War LXXII A. 

Of general court-martial See Discipline VII A to F, 

To discharge soldier See Discharge III B 1 ; XX A to F. 

Trial judge advocate See Discipline IV B 1 to 5. 

AUTOMOBILES. 

Not subject to State license when in service 

of United States See Tax III N. 

Transportation by See Army I G 3 b (2) (a) [4]. 

Militia VI B 2 f . 

BACHELOR'S MESS. 

Use of liquor at See Intoxicants II C. 

Mess bill. See Army I G 3 b 3 (a) [1], 

BADGES. 

See Insignia of merit III, 
Campaign, issue to Militia See Militia XI ll B. 



182 BAGGAGE — BLANKET GUAEANTIES. 

BAGGAGE. 

Transportation of retired officers^ See Retirement I n 4. 

BAIL. 

See Articles of War LIX K., 
See Discipline I C. 
Of enlisted men See Command V A 2 c. 

BAKERY SAVINGS. 

See Government agencies. 
At joint encampment See Militia VI B 2 a. 

BALLOON. 

Finder of. See Public property I A 6. 

BANKRUPTCY. 

Of contractor See Contracts X E ; XX C 10. 

BARRACKS AND QUARTERS. 

See Appropriations XXVIII. 

BATTALION COMMANDER. 

Authority to recommend appointments See Command V G 1 b. 

BATTALION STAFF OFFICERS. 

Appointment of. See Command V C 1 b. 

BEER. 

7s intoxicating See Intoxicants I a. 

BENEFICIARY. 

Under Act of May 11, 1908 (35 Stat. 108). .See Gratuity I A; B 1 to 4. 

BIDS AND BIDDERS. 

See Contracts VI to VII. 

Bond by See Bonds III F. 

Liability of See Contracts XI to XII. 

Nonfatal defect in guaranty See Bonds I C. 

On Government contracts See Contracts XXIII E. 

Partnership See Contracts XXX. 

Receiver See Contracts XXXVII. 

BIGAMY. 

See Articles of War LXI B 12; LXII D. 

"BLANKET" GUARANTIES. 
Are legal See Contracts XI E. 



BOARD OF OFFICEES BONDS: SYNOPSIS. 183 

BOARD OF OFFICERS. 

_,, r -,,. ^^^ Discipline XVIII A to E. 

Character of soldier See Discharge III C; XI A 2. 

„j . , , EnlistmentI D3to4. 

Claim damaged property See Claims II. 

_, . , ^ , Militia VI C 1 i. 

Evidence of record See Discipline XI A 13. 

Fifty-fourth article of tear See Article of war LIV E. 

Inventor can not serve on, which is consider- See Patent V. 
ing his invention. 

Promotion.. See Retirement I B 6 to 8. 

Retiring See Retirement I B 1 to 6 

Sqiiatters improvements by See Public property III H 2 

Volunteer ojicers, examination of See Discharge XXI A 

Volunteers, character of See Volunteer Army IV H 2. 

Enlistment I D 3 d (4). 

BOARD OF REVIEW. 

See Discharge XVII B. 
See Army I G 3 d (2) to (3). 
See Retirement I B 7 a. 

BONDS.i 
I. BONDS IN GENERAL. 

A. Bond May be Required in Absence of Statute Page 187 

B. Guaranty Should be as Legally Sufficient as a Bond Page 188 

C. Nonfatal Defects in Bidders' Guaranties Waived Page 189 

D. Objection that Partner was Guarantor for Copartner may be 

Waived. 

E. Construction of Guaranty Incompletely Filled Out * 

F. The Seal. 

1. Effect of guaranty without seal. 

2. Bonds not under seal may still be valid contract. 

3. Printed scroll or other device valid substitute for adhesive seal in most 

States Page 190 

G. Bonds op Corporations. 

1. Corporate name must be exactly expressed. 

2. Officer signing name of corporation and attaching seal should have 

proper authority to do so. 

3. Practice where authority to execute bonds does not clearly appear and 

it is impracticable to have bonds reexecuted. 

4. Corporation may use any seal like an individual Page 191 

H. Bonds of Organization that have no Legal Entity. 

1. In practice bonds on behalf of such organizations are signed by a 

proper person as principal. 

2. Proper procedure where United States Soldiers' Home gives bond. 

3. Where individual conducts business under company name papers 

should be in name of individual. 

4. Bond of Philippine Islands while being administered under authority 

of the President should run in name of United States Page 192 



' Prepared by Maj. H. M. Morrow, judge advocate, assistant to Judge Advocate 



General 



184 . bonds: synopsis. 

I. BONDS IN GENERAL— Continued. 

I. Contracting Officer in a Bond May be Designated by Title Alone. 
J. Validity of Bond Not Affected by Absence of Witness to Signature 

OF Principal. 
K. Date of Bond. 

1. Validity of bond not affected by omission of date. 

2. Where date of bond differs from date of resolution authorizing its 

execution. 

3. Where bond recites that the principal had on a subsequent date entered 

into a contract for performance of which bond was given. . Page 193 
L. Guaranty Signed by Members of Bidder's Family. 
M. Sureties. 

1. Bond should not be accepted unless sureties are clearly bound. 

2. Erasures and interlineations in bond without consent of surety. 

3. Sureties not bound by supplemental contract unless they assent. 

4. Not bound by unauthorized modifications of contract Page 194 

5. Sureties not bound beyond period originally fixed by contract, unless 

they assent. 

6. Where bond provides surety shall be bound during period of extension 

of contract, surety continues to be bound though contract extended 
more than once. 

7. Double aspect of bond to secure performance of contract and payment 

of laborers. Obligation not affected as to labor and material-men 
by modification without surety's consent. 

8. Validity of bond not affected by omission of name of surety from body 

of bond . 

9. Affidavit of justification of sureties Page 195 

10. Failure to secure consent of one surety to modification of contract re- 

leases all sureties. 

11. WTiere one surety on joint and severel bond dies, new bond not required. 

12. Where changes are made in bond and it is not known whether they 

were made by consent of sureties. 

13. Stockholders of a corporation as sureties for the corporation. 

14. Married woman as surety Page 196 

N. Bond to United States Usually Considered as Made and to be Per- 
formed at Washington. Bond Connected with River Improve- 
ment IS Possible Exception. 

O. Power op Treasury Department to Review or Exercise Control 

Over War Department Bonds. 
P. Contrary to Practice op War Department to Surrender Bonds 

After Performance or to Release Sureties Page 197 

Q. In Absence of Law Requiring a Joint and Several Bond, Such 

Bond Not Required. 
R. Power of Partners to Execute Bond for Partnership. 
S. Authority to Sign All Bonds Necessary to Carry on Business of 

Company is Prospective Only Page 198 

T. Rule as to Obligation Where New Bond for Reduced Amount is 

Given in Place of Old Bond. 
n. BONDS OF DISBURSING OFFICERS. 

A. May be Taken Even Where no Statutory Authority. 

B. Cumulative Bonds Page 199 

C. Sureties Should Justify in Double the Amount of Bond.. Page 200 



BONDS: SYNOPSIS. 185 

BONDS OF 'DISBURSING OFFICERS— Continued. 

D. Where Each of Sureties on Joint and Several Bond is not Bound 

FOR Full Amount of Bond. 

E. Bond Inoperative as to Future Acts on Promotion of Principal 

to Higher Grade, or on His Ceasing to Hold Office Page 201 

F. Bond Once Given Continues in Force, Notwithstanding Officer 

Not for the Moment Disbursing Funds. 

G. "Office" Means Office Named in Bond; Does Not Apply to Office 

to Which Promoted. 

H. Bond Continues Where Only Title of Office Changed Page 202 

I. Upon Promotion to Higher Grade Officer Not Required to Give 
Bond Uuntil He Enters on Performance of Duty. 

J. Where a Line Officer Appointed Disbursing Officer. 

K. Army Officer May Be Surety on Official Bond op Another Army 
Officer. 

L. By Regulations in Aid of Section 1191, R. S., Which Requires Certain 
Officers to Give Bond, Secretary of W^ar May Authorize Ac- 
ceptance op Bond Signed by Surety Only, and May Delegate to 
Commanding General, P. I., Right to Approve Bonds. 

M. Sufficiency of Description of Office in Bond. 

N. Par. 589, A. R., 1910, as to Substituting One Surety Company for 
Another Page 203 

O. Disbursing Officer's Bond Under Military Government o Cuba 
Should be Filed in Insular Bureau. 

P. Bond of Treasurer op United States Military Academy for Funds 
Not Strictly Public. 

Q. Inspection of Official Bonds Under Act of March 2, 1895. 

R. Bond Given to Carefully Discharge Duties of Office, No Responsi- 
bility FOR Failure op Subordinate to Perform Duties Page 204 

BONDS OF CONTRACTORS. 

A. Bond May be Waived Where Not Required by Statute. 

B. Approval of Contract Includes Acceptance of Bond Page 205 

C. Can not be Assigned to Creditors of Contractor to Enable Them to 

Sue. 

D. Where Contract Partly Performed New Bond May be Propor- 

tionately Reduced. 

E. Requirement Fixed by Regulation as to Amount of Bond May be 

Waived. 

F. Where Bidder Notified that Bond will be Required to Secure 

Performance op Contract and Lowest Bidder Failed to Enter 
into Contract, and Thereupon Contract Let to Another, Such 
Contract Not Required to be Secured by Bond Page 206 

G. Where Sureties are Individuals Additional Security can not be 

Required. 
BONDS OF EDUCATIONAL INSTITUTIONS— COLLEGES. 

A. There Must be Evidence that Officer Signing has Authority to 

Represent Institution. 

B. Usually Must be Shown that Officer Signing has been Duly 

Elected. Exceptions Page 207 

C. Resolution Authorizing Officer to Sign Bond Must be Clear and 

Specific as to Such Authority. 

D. General Authority to Sign Bonds is Sufficient. 



186 BONDS: SYNOPSIS. 

IV. BONDS OF EDUCATIONAL INSTITUTIONS— COLLEGES— Continued. 

E. Authority of Officer to Sign Bond Must Appear from Copy op 

Records; Certificate of Officer to this Fact Not Sufficient. 

F. Copy of Records Must Show that the Particular Person Signing 

is an Officer Page 208 

G. Bond of Corporation Must be Strictly in Corporate Name; Name 

of Corporation on Seal. 

H. It Must Appear that Board or Committee Executing Bond or 
Authorizing Officer to Sign Bond is Vested with Sufficient Power 
FOR THE Purpose. Instances. 
I. Bond Should be Accompanied by Copy of Charter Showing Insti- 
tution has Power to Give Bond Page 209 

J. Under Section 1225, Revised Statutes, Principal on Bond for Cor- 
poration May be Individual Instead of Corporation Page 210 

K. Bond with One Surety May be Accepted. 

L. Under Section 1225, Revised Statutes, Bond May be Given by Surety 
Company Alone, Institution Not Signing Page 211 

M. Bond Must State College can Educate 150 Male Students. 

N. Bond Given Pursuant to Resolution of Board Should Not be 
Accepted where it is Greater than the Amount Authorized by 
Board. 

O. Condition that Property of College Should be Resorted to Before 
Surety is Liable Not Proper. 

P. Bond May be Given to Secure Future Issues op Ordnance, as Well 
AS Issues Already Made. 

Q. Bond Double the Value of Stores Issued. 

R. Bond Should Distinguish Between Stores Already Issued and 
Those to be Issued. 
V. BONDS WITH CORPORATE SURETY. 

A. Even in Absence of Statute Authorizing Corporate Surety Such 

May be Accepted Page 212 

B. Copy of Record Showing Selection and Qualification of Officers 

Must be Attached to Bond; Certificate op Secretary Not 
Sufficient. 

C. Surety Bound Notwithstanding Failure of Principal to Pay 

Premium. 

D. Surety Bound by Acts of Agent Until Notice Given of Ratification 

op His Authority. 

E. Act of March 2, 1895, Biennial Examination of Bonds Page 213 

F. Letter of Superintendent op Surety Company that Company Would 

Be Held on Bond After Promotion of Officer to Higher Grade 
NOT Sufficient to Bind Company. 

G. Appointment of Agent on Whom Process May be Served. 

H. Under Act op August 13, 1894, Which Authorizes the Acceptance of 
Corporate Sureties, Attorney General Can Not Require Addi- 
tional Security for Work Already Done as Condition of Being 
Allowed to Complete Work Page 214 

I. Foreign Corporation Not Required to Comply With Laws of State 
Before Doing Business with United States. 

J. Act of August 13, 1894, Which Authorizes the Acceptance of Cor- 
porate Sureties, Does Not Apply to Contract with Foreign Con- 
tractor to be Performed in Foreign Country or to be Performed 
IN the Philippine Islands. « 



BONDS I A. 187 

V. BONDS WITH CORPORATE SURETY— Continued. 

K. Paragraph 585-(2), Army Regulations, 1910, as to Bond Being Not 
Greater than Ten Per Cent of Company's Paid-up Capital and 

Surplus Page 215 

L. Act of March 23, 1910, Amending Act of August 13, 1894, Authoriz- 
ing Secretary of the Treasury to Inquire into Solvency of 
Corporation. 

I A. Although there may be no expres^ statutory provision 
requiring a disbursing officer to give a bond, the Government may 
require such officer to give one/ and where pubhc property is 

^ Bonds may be required by the Government from officers appointed to places of 
trust though there is no statutory authority to take such bonds, and they will be 
valid instrumerrts. In a bond with sureties given by an officer of the Government 
it is sufficient to make the bond valid that it is voluntarily given and that the office 
and the duties assigned to the officer and covered by the bond are duly authorized 
by law. 

In United States v. Tingey (5 Pet., 116) the court said: "A voluntary bond taken 
by authority of the proper officers of the Treasury Department, to whom the dis- 
bursement of the public moneys is intrusted, to secure the fidelity in official duties 
of a receiver or an agent for disbursement of public moneys, is a binding contract 
between him and his sureties and the United States, although such bond may not 
be prescribed or required by any positive law. The right to take such a bond is in our 
view an incident to the duties belonging to such a department, and, the United 
States haviug a political capacity to take it, we see no objection to its validity in a 
moral or a legal view." See to the same effect Jessup v. United States (106 U. S., 147). 
In Moses v. United States (166 U. S., 587) the court said: "The consideration or the 
condition of the bond must not be in violat ion of law ; it must not run counter to any 
statute; it must not be either malum prohibitum or malum in se. Otherwise, and for 
all purposes of security, a bond may be valid though no statute directs its delivery. 

"We do not understand by the decision in Peters, above cited, that the meaning 
of the term ' voluntary bond ' is that the bond must have been offered and pressed 
upon the Government when never asked for or demanded by it. It is a voluntary 
bond when it is not demanded by any particular statute or regulation based thereon 
and when it is not exacted in violation of any law or valid regulation of a department. 
Having the right to take a bond, the Government in a case like this has the right 
to demand it from the officer and to say to him that if he do not give it he will not 
be continued as a 'property and disbursing officer of the Signal Service.' Such a 
demand when complied with does not amount to the illegal exaction or extortion of the 
bond. The case of a bond so procured differs radically from a case like that of Tingey, 
supra, inasmuch as the bond in the latter case was extorted from a reluctant officer 
with a condition therein contained different from that which the statute called for. 

"The power of the Government to take bonds in cases of this nature in the absence 
of any law or general regulation to that effect, but by direction of the head of a 
department, was recognized again in the case of the United States v. Bradley (10 Pet., 
343, 359). In that case the bond taken contained conditions beyond those provided 
for in the act of Congress, yet it was held that those conditions which were within the 
act were valid and could not be regarded as extorted from the obligor, although they 
were set forth in the same instrument which contained other and illegal conditions. 
The case of Tingey supra, was cited by the court and approved as to the principle 
that the United States may take a bond as security, etc., when not in violation of 
any statute. 

"In this case we think the bond was a voluntary bond in the sense that it was not 
illegally extorted from the defendant Howgate under color of office or by threats from 
a superior officer; that the United States, through the Secretary of War, had the right 
to demand a bond with conditions such as the bond in question contains, and that it 
did not cease to be a voluntary bond merely because Lieut. Howgate did not gra- 
tuitously and without request proffer it and ask that it might be received, or because 
he was reluctant to give it and only gave it upon the demand of the Secretary. Under 
the facts developed in this case, situated as Lieut. Howgate was with respect to the 
public mpneys, the United States, having the right to take a bond, had the right to 
demand it under penalty of refusing to permit him to longer remain as a disbursing 
officer or to further receive public moneys for disbursement by him." (See also 
United States v. Rogers, 28 P'ed. Rep., 607, and 32 id., 890; 6 Op. Atty. Gen., 24.) 



188 BONDS I B. 

intrusted to individuals, there being no law requiring a bond, the Sec- 
retary of War may properly require a bond. 51 P. I1.46, Jan. 28, 1892. 
In practice bonds are frequently required by the United States in 
the course of its business, although there may be no statutory author- 
ity for the bond. Such bonds have been required under the fol- 
lowing circumstances: Wliere the title to property leased by the 
United States from a private individual is in litigation, recommended 
that a bond be required from the lessor before payment of. the rent 
is made. G. 5352, Nov. 19, 1898. Where a statute directed the 
Secretary of War to deliver obsolete cannon to national and State 
homes for soldiers and sailors, ''subject to such regulations as he 
may prescribe." Held, that the Secretary would properly require 
that bonds be furnished for the safe-keeping and due return of such 
ordnance. 51, R. 446, Jan. 28, 1892. Wliere the title to personal 

Eroperty to be purchased by the United States is at all doubtful a 
ond of indemnity might be required from the seller. C. 6881, 
Aug. 12, 1899. Wliere a vessel was made in a foreign country and 
it was possible the laws of the country would give labor and material- 
men a lien, and the act of Congress of August 13, 1894 (28 Stat., 278), 
would not be applicable, a bond might be required to secure the pay- 
ment of laborers and material-men. C. 19164, Feb. I4, 1906. Wliere 
certain payments to a contractor had been suspended by the auditor, 
and an appeal had been taken to the comptroller and pending the 
comptroller's decision further payments to the contractor had been 
suspended by the Secretary of War, and the contractor requested a 
removal of the suspension and payment to him, offering to give bond 
to secure the repayment, Tield, a bond might be accepted as requested 
conditioned to refund all payments if the decision of the comptroller 
should be adverse to the contractor, but the refunding should not 
be conditioned upon the determination of a question of fact which 
might have to be referred to the courts for decision. C. 13359, 
Sept. 24, 1902. Where a contract for the installation of a steam- 
heating plant provided that the plant should stand a certain test 
during the coming winter, but in fact the plant was not installed 
until spring, thereby making it impossible to apply the test, held, 
there was no legal objection to paying the amount retained on the 
contractor filing a bond conditioned to make good any defects 
that might develop at a proper test in freezing weather. C. 13001, 
July 22, 1902. Wliere certain officers representing the United States 
used certain patented articles, the patent not being owned by the 
contractor from whom obtained, and although the United States 
could not be sued in tort or enjoined from using the articles, yet the 
officers and agents of the United States possessed no such exemption 
from suit, recommended a bond be required from the contractor, 
before payment to him of the money due under the contract, con- 
ditioned to indemnify the officers and agents of the United States. 
C. 21164, Sept. 3, 1907. 

I B. The purpose of a bidder's guaranty is to furnish sufficient 
security that the bidder will, if his bid be accepted, enter into con- 
tract as prescribed. But the direct object is to enable the Govern- 
ment to collect the difference between the bidder's bid and the amount 
the Government would have to pay some one else for the supplies or 
work in case the bidder should not enter into cpntract according to 
his bid. The guaranty can not be used to force him to enter into 



BONDS I C. 189 

his contract; but it is valuable and essential in the event of a suit to 
recover such difference. It should therefore be as formal and legally 
sufficient as a contractor's bond, and prepared with a view to serving 
as a basis for a legal claim by suit if necessary. P. 56, 4i^, Nov. 29, 
1892. 

I C, Such defects in bidders' guaranty bonds as are not fatal to 
the validity of the bond, are in practice waived by the department. 
C. 26905, June 17, 1910. 

I D. Where instructions to bidders provide that a partner will 
not be accepted as a guarantor or surety for a copartner,^ this objec- 
tion may be waived since it would not in any way affect the validity 
of the guaranty. C. '20670, Nov. 23, 1906. 

I E. A bid was accompanied by a guaranty defective in that 

blank spaces were left in filling it out as follows: "We hereby 

guarantee that if the accompanying proposal of be accepted 

in any or all of its items within 60 days after the opening of said 
proposal, the said bidder (naming him) will, upon written notice of 
such acceptance, if so required by the United States or its legal 

representatives, within days after written notification of said 

acceptance, enter into a contract," etc. Held, the first onfission 
does not affect the validity of the guaranty and may be waived; 
the second omission is cured by the subsequent appearance of the 
name of the bidder; the third omission as to the time of entering 
into the contract is cured by the fact that in the "accompanying 
proposal" the bidder undertook to enter into the contract "within 
the time designated in the advertisement." C. 20701, Nov. SO, 1906. 

I F 1. Bids were required to be accompanied by a guaranty that 
the bid if not withdrawn prior to the opening of bids should remain 
open for 60 days thereafter, and that if accepted within that time the 
bidder would deliver the required articles, or, if required, enter into 
a contract for delivery of the articles in accordance with the terms 
of the proposal and acceptance, and give proper bond for performance 
of the contract. Bidders were advised that no bid would be con- 
sidered unless accompanied by a proper guaranty. A bid was 
received accompanied by a guaranty that was defective by reason of 
the omission of a seal. Held, that such a guaranty was not enforce- 
able and was equivalent to no guaranty, that the actual omission of 
the seal destroyed the validity of the instrument as a sealed instru- 
ment (which is valid without a consideration as it conclusively pre- 
sumes a consideration), even though it recited that a seal was attached. 
The instrument was not valid as an unsealed instrument, that is a 
common contract, because it lacked consideration to sustain the 
undertaking of the guarantors. C. 20670, Nov. 26, 1906; 21707, 
Jan 21,^ 1907. But Where a guaranty was made and delivered in 
California and was intended to be binding on delivery, the proper law 
of the contract is the law of California, and where the code of that 
State abolished all distinctions between sealed and unsealed instru- 
ments, and provided that a written instrument was presumptive 
evidence of a consideration, lield that the omission of a seal did not 
affect the validity of the guaranty. C. 18583, Sept. 18, 1905. 

I F 2. Where a paper purporting to be a bond and reciting that it 
was "sealed," was not in fact sealed, Jield that not being sealed it 

1 See par. 581, A. R., 1910, to same effect. 



190 BONDS I F 3. 

was not a bond, but if it was entered into by competent parties, and 
for a lawful purpose not prohibited by law, and was founded upon a 
sufficient consideration, it would be a valid contract, and could be 
legally enforced. \ R. 34, Ul, Feb. 25, 1873. 

I F 3. As a printed scroll or other device is recognized in all States 
and Territories (including Alaska, Hawaiian Islands, Porto Rico, and 
the Philippines) where any seal at all is required, excejit Maine, Mass- 
achusetts, and New Hampshire, as a valid substitute for a seal in the 
execution of an instrument under seal, the War Department will not 
require an adhesive seal to be attached to a Government instrument 
urporting to be under seal, unless such instrument is executed or to 
e performed in one of these excepted States.^ C. 1769, May 29, 
1907. 

I G 1. Where a corporation is principal in a bond given to the 
United States its full legal corporate name should be expressed. 
Thus where the laws of the State in wliich such a corporation was 
created required that the name of a corporation should always include 
the name of the city or county in which it was formed, and a corpora- 
tion obligor had been incorporated as "The * * * Company of 
Baltimore City," held that the bond was incomplete unless this addi- 
tion was set forth, and the instrument executed accorchngly.^ P. 58, 
147, Feb. 24, 1893; C. 2395, July 21, 1896. 

I G 2. Where a corporation is named as principal in a bond its 
corporate name and seal (if it has one) should be affixed by the officer 
having authority to do so. R. 55, 686, June 30, 1888; P. 65, 190, 
409, 412, and 414, June to Sept., 1894. 

I G 3. Where the principal on a bond was a foreign corporation 
and there was no evidence to show that the persons who executed it 
as the directors and manager were such or that they had authority 
to execute it as required by Army Regulations,* and the case would 
not admit of the delay neces'sary to secure proper evidence as to the 
execution of the bond,^ recommended, that the individual sureties on 
the bond be required to sign a statement that the bond is properly 
executed by and is binding upon the principal. This would estop 
the sureties from contending in case of a suit on the bond that it 
is not binding on the principal.^ C. 6817, July 29, 1899. So, also, 

' United States ';;. Linn, 15 Peters, 290. Where an official bond offered by the 
principal without seals was returned to him to have the seals put on, and was brought 
back by him with the seals attached, the consent of the sureties thereto will be pre- 
sumed in action on the bond, unless the contrary appears. Moses v. U. S., 166 U. S., 
571; 18 Op. Atty. Gen., 458. 

^ Par. 578, A. R., 1910, requires that contractor's bonds shall be under seal (not 
necessarily an adhesive sea'l). In practice bonds of all kinds in the business of 
the War Department are invariably required to be uiwier seal (not necessarilv an 
adhesive seal) regardless of any requirement of statute or regulation, and a scroll seal is 
printed on the blank forms, which scroll is adopted by the signer as his seal. See 
District of Columbia v. Camden Iron Works, 181 U. S., 453, that either a corporation 
or an individual may use and adopt any seal. 

3 See "Bonds" IV G. 

^ Par. 582, A._ R., 1910, is to the same effect. 

* In practice it is only in cases where it is very difficult to obtain the regular execu- 
tion of the bond by the principal, or where the conditions will not permit of delay, 
that it is recommended the bond be approved upon obtaining the statement of the 
sureties that the principal has properly executed the bond. 

* The statement by the sureties need not be under seal, as their liability would be 
based on the principles of equitable estoppel and not on any principle relating to 
sealed instruments. 



BONDS I G 4. 191 

where the surety was a corporation, recommended, that the proper 
agent of the surety company be required to sign a similar statement. 
a 6901, Aug. IS, 1899; 7278, Dec. 11, 1899; 6817, Sept. 15, 190^; 
28O49, Mar. 29, 1911. So, also, where a corporation was principal 
and its board of directors attempted to ratify the prior execution of a 
bond, but failed to show that the bond when executed was binding on 
the corporation, recommended, that the sureties be required to sign a 
similar statement. G. 6887, Sept. 22, 1899. So, also, where it did 
not clearly appear that the person executing the bond for the corpo- 
ration principal was authorized to do so, a similar recommendation 
was made. C. 6901, Aug. 18, 1899; 13024, Dec. I4, 1908. So, also, 
where there was no evidence of the express authority of a partner to 
sign the firm name to a bond, and it was impossible to obtain such 
authority, similar action was recommended. C. 734-8, Nov. 28, 1899. 

I G 4. The fact that a corporation has not adopted a corporate 
seal will not affect the vahdity of its execution of a bond in which 
it is principal or surety, provided some form of seal be added to its 
signature. A corporation may make and use any seal in its discre- 
tion in the same manner as a private individual.^ R. 50, 525, 
July 15, 1886; C. 836, Nov. 7, 1905. 

I H 1. An unincorporated body that has no legal entity can not 
become a party to a bond to secure the safe return of public property 
received by it. In such a case it is the j)ractice to require the bond 
to be signed by a private person as principal.^ As, where pubhc 
property was by authority of Congress loaned to the inaugural com- 
mittee a bond signed by a private individual as principal was required. 
C. 9788, Feh. 24, 1909. Where public property was loaned as an 
exliibit to an unincorporated body. C. 12868, June 27, 1902; 27003, 
July 11, 1910. So also where a railroad company carried on a trans- 
fer business under the name of "The Blue Line Transfer Co." held 
that as there was no such legal entity as the Blue Line Transfer Co. 
the bond should be in the name of the railroad company as principal, 
or if desired in the name of the manager of the Blue Line Transfer 
Co. individually as a principal, and that if the latter method was 
adopted the condition of the bond should recite that the contract 
had been entered into by the railroad company under the name of 
the Blue Line Transfer Co. 0.28614, Sept. 5, 1911. 

I H 2. The United States Soldiers' Home desired to obtain from a 
bank money of a deceased inmate of the home. Held that as the 
home was not a legal entity it could not give a bond, but that the 
proper procedure would be to have the board of commissioners pass 
a resolution authorizing the treasurer of the home in his official 
capacity to execute the bond, and the bond should then be executed 
by the treasurer in his official capacity. C. 11965, Jan. 23, 1902. 

I H 3. Where an individual conducts his business under a company 
name, a contract and bond should be in the name of the individual 
and not in the name of the company, as the latter being a mere name 
having no existence as an artificial being such as a partnership or 
corporation has, is incapable of being a party to a bond. C. 18197, 
May 11, 1907. 

'See 26 Op. Atty. Gen., 507, and District of Columbia v. Camden Iron Works, 
181 U. S., 453, to same effect. 
2See"Bond8"IVJ. 



192 BONDS I H 4. 

I H 4. While the government of the Phihppine Islands was being 
administered under the authority of the President, there being no 
act of Congress or the Phihppine Commission establishing a pohtical 
society with corporate existence by the name of the ''Government 
of the Philippine Islands/' held there was no legal entity by the 
name of "Government of the Philippine Islands" capable of being 
the obligee in a bond; that a bond given to secure the deposit of 
funds of the government of the Philippine Islands should run to 
"The United States of America" either with or without the addi- 
tional words "for the use of the government of the Pliilippine Islands." 
C. 12852, June 24, 1902. 

1 1. There is no legal objection to a bond reciting that the contract 
secured thereby has been executed by the "Chief of Ordnance," 
"Commanding officer, Watervliet Arsenal," etc., the name of the 
officer being omitted. C. 18396, Aug. 3, 1905. 

I J, The absence of a witness to the signature of a principal or 
surety on a bond does not affect the validity of the bond, and may 
be waived where the signature of the principal is known to the 
department. C. 1435, Nov. 26, 1900. 

I K 1. A bond should of course be dated, but the omission of the 
date will not affect the validity of the instrument, as the true date of 
execution can be otherwise proved, in the event of a suit on the 
bond.i C. 3511, Sept. 15, 1897; 2687, Nov. 2, 1897; 2990, Aug. 13, 
1904; 1595, Aug. 13, 1906; 4279, June 8, 1898; 3645, Oct. 28, 1902. 

I K 2. Where a bond was executed on a certain date by a cor- 
poration as principal to secure the safe-keeping of a deposit of public 
lunds and the bond recited that on a subsequent date a resolution of 
the board of directors had been passed authorizing the execution of 
the bond, lield this inconsistency of dates did not constitute a fatal 
defect, that parol evidence could be introduced to prove the real date 
of the bond was different from that stated in the bond and the bond 
would take effect from defiyery. C. 6817, Oct. 27, 1904. But where 
a bond given by a corporation to secure the safe-keeping of a deposit 
of public funds was dated September 6, 1900, and recited that the 
board of directors on September 19, 1900, had authorized the execu- 
tion of the bond, and the authority given by the board referred only 
to the execution of bonds in the future, held that if the dates were 
correct the bond should be reexecuted on a date subsequent to Sep- 
tember 19, 1900, or the bond of September 6, 1900, should be ratified. 
C. 6825, Oct. 6, 1900; 20656, Mar. 19, 1907. So, where a bond for 
the safe keeping of ordnance issued to an educational institution was 
dated September 9, 1906, the aruthority for the execution of the bond 
being a resolution of the board of regents passed October 4, 1906. 
Held, the bond should be reexecuted as of or subsequent to, October 
4, 1906. C. 3543, Oct. 15, 1906; 27659, Jan. 4, 1911. But where a 
bond given by a corporation was dated July 5, 1907, while the resolu- 
tion authorizing its execution was dated July 8, 1907, held that the 
irregularity of dates in no way affected the validity of the bond, that 

' Bishop, on Contracts, sec. 114. "It (an instrument under seal) need have no 
date; it is even good with an impossible one, or one differing from the fact. Its 
date in law is that of the delivery. Nor need it mention the place where executed." 
See, also, Miirfree on Official Bonds, sec. 6. 



BONDS I K 3. 193 

the bond became operative from delivery which was subsequent to the 
date of the resolution. C, 15730, July 2Jf, 1907. 

I K 3. A bond was executed on a certain date, and it was recited 
therein that the principal had on a subsequent date entered into the 
contract for the due performance of which the bond was given. Held, 
the inconsistency does not affect the validity of the bond; the fact 
that the bond was executed before the contract was, is immaterial, 
but the recital is a part of the means of identifying the bond and 
should not be contradictory. Therefore recommended in the par- 
ticular case that to avoid m the event of a suit on the bond the 
necessity of resorting to outside evidence to identify the contract, 
a new bond be required, the latter to refer to the contract as one which 
will he entered into. O. 2765, Nov. 24, 1896; 3053, Apr. 12, 1897; 
3164, Apr. 29, 1897; 3640, Nov. 5, 1897. 

I L. Where a guaranty accompanying a bid was signed by the 
father of the bidder, held, binding on the "father. C. 580, Oct. 29, 
1894. But where a contractor offered a bond subscribed by his 
two daughters as sureties, advised that notwithstanding the financial 
relations of the daughters to the parent might be satisfactorily 
explained, and notwithstanding the daughters were unmarried, the 
bond should not be accepted, tt. 39, 518, Apr. 26, 1878. 

I M 1 . Obligations incurred by sureties are strictly construed in 
their favor, and, as a rule, are paid only when enforced by law. A 
bond, therefore, should not be accepted where suit can not be suc- 
cessfully brought upon it against the sureties, whose contract, on the 
face of the instrument, must thus be clearly vahd and binding. P. 56, 
412, Nov. 29, 1892. 

I M 2. If after the execution of a bond a material change be made 
in the name or description of the principal, by erasure, interlineation, 
or otherwise, without the assent of the sureties or a surety, even 
though such change be made to correct a mistake, the surety or sure- 
ties not consenting wiU be released. In a case of such an alteration rec- 
ommended that a new bond be required, as, for instance, where the 
name of the principal is changed from "Michigan State Board of Agri- 
culture" to '^'The State Board of Agriculture." P. 35, 283, Sept. 27, 
1889. Where the name of the principal is changed from "Purdue 
University" to "The Trustees of Purdue University." P. 57, 41, 
Dec. 14, 1892; 58, 4OO, Mar. 24, 1893. So, also, where the name of one 
of two sureties was erased and a new surety was substituted without 
the consent of the remaining surety, recommended that the written 
assent of the remaining surety to the substitution be obtained. C. 
1262, May 21, 1895. And where the penalty was changed by the 

Erincipal from $40,000 to $20,000 subsequent to the execution of the 
ond, recommended that a statement signed by the sureties be required 
to the effect that the change was made with their consent. C. 237, 
Sept. 12, 1898. But the alteration of a bond by striking out the words 
"caf)tain and commissary U. S. Army," which described the principal, 
and i|iterlining the words "commissary U. S. Army with rank of cap- 
tain" is not a material alteration. C. 9119, Aug. 31, 1901. 

I M 3. A bond for the faithful performance of a contract wiU not 
cover material modifications of the contract, in the form of a supple- 
mental agreement or otherwise, unless the sureties formally assent to 
93673°— 17 13 



194 BONDS I M 4. 

'the same.i P. 30, 116, Feb. 6, 1889; 55, 365, Sept. U, 1892; C. 12U, 
Apr. 12, 1895; 21688, Nov. 19, 1907. 

I M 4. A bond to secure the performance of a contract is vahd to 
secure the performance of any such modifications thereof as are 
authorized by the terms of the contract itself,^ but will not cover 
modifications not thus authorized and which substantially make a 
new contract. P. 54, 7 and 162, May 27 and June 20, 1892. 

IMS. A bond can not be extended beyond the period originally 
fixed by its terms so as to continue to bind the sureties, unless they 
consent to such extension. R. 20, 270, Apr. 13, 1870. Where the 
United States rented certain premises to a private individual and the 
rent was secured by bond and the lessee applied for a material delay 
in making payment of rent, held that to grant such application would 
discharge the sureties unless they gave their assent to the delay, and 
recommeded that the same be not acceded to without their consent to 
the arrangement.^ R. 55, 196, May 12, 1888. 

I M 6. Where a bond given for the due performance of a contract 
provided that the surety should be bound " as well during any period 
of extension of said contract that may be granted on the part of the 
United States as during the original term of the same," held that the 
surety would continue to be bound even though the contract was ex- 
tended more than once, either by an extension to a specific date or by a 
waiver of the time limit." C. 13906, Jan. 3, 1903; 20423, Nov. 21 , 1906. 

I M 7. A contract was modified by supplemental agreement with- 
out the consent of the surety on the contractor's bond. Held, that 
such a bond may be considered as in effect two obligations, one to the 
United States to secure the due performance of the contract, and the 
other to the United States but on behalf of labor and material-men 
to secure their payment, and that the obligation for the benefit of 
the labor and material men was not released by the action of the 
contractor and the United States in modifying the contract without 
the surety's consent.^ C. 17474, Fei. 3, 1905. _ 

1 M 8. The omission of the name of the principal or surety from 
the body of the bond does not affect its validity. C. 24908, May 10, 

* See also, VIII Comp. Dec, 555, where, as to the payment of retained percentages to 
a contractor before completion of the contract, it is said: " * * * the very purpose 
of such retention was to keep the contractor a creditor and spur him on to complete 
the work according to the contract in order that he may collect such retentions and 
make them his own. The sureties are interested in such retention, and if the owner 
should pay them to the contractor before they are due under the contract such act 
would result in the release of the sureties on the ground that such action deprives 
them of a substantial means of indemnity from loss if they are called upon to finish the 
work or respond in damages in case the work is relet at an advance in price over 
that originaUy contracted for. (See 57 Fed. Rep., 179.)" 

2 See United States v. Freel, 186 U. S., 309. 

^ See U. S. V. McMullen (222 TJ. S., 460), where the contract provided forpossible ex- 
tensions of time, but did not expressly provide that the sureties should continue bound, 
and it was held that the sureties were not discharged by an extension of the time for 
performance. See also U. S. v. Fidelity & Guaranty Co. (178 Fed. Rep., 721), where 
it washeld, on the authority of Guaranty Co. v. Pressed Brick Co. (191 U. S., 416), that 
the obligation of a paid surety company in respect to labor and material-men is not 
affected by a reasonable extension of the time for payment of such claims in the absence 
of a showing of actual injury. 

* All contract bonds under the War Department contain the above-quoted pro- 
vision continuing the liability of sxu-eties during any period of extension of the contract. 

^See Conn. v. State, 125 Ind. 514; 46 Nebr., 644; 41 Nebr., 655; 40 Minn., 27; 
U. S. Rundle, 100 Fed. Rep., 400; U. S. v. National Surety Co., 92 id., 549; U.S. v. 
American Bonding Co., 89 id., 921; U. S. Fidelty, etc., Co. ?;. Golden Pressed Brick 
Co., 191 U.S., 416. 



BONDS I M 9. 195 

1909. So where the Christian name of the principal in the body of 
the bond was written "Alvin" while the name signed was "Alva," 
held in view of the similarity in sound of the names, and the fact that 
it is the signature or seal of the party that fixes his liability on the 
bond, not the recital of liis name in the body of the instrument, the 
bond is vahd. C. 25293, Aug. U, 1907. 

I M 9. The affidavit of justification should be taken before some 
officer, like a notary public, having authority to administer oaths for 
general purposes.^ If the officer has an official seal it must be affixed ; 
otherwise tne proper certificate as to his official character must be 
furnished. P. 38, 412, Feb. 12, 1890; 63, 117, Jan. 2, 1894; 65, 192, 
June 4, 1894- But as the justification is no part of the bond, and as 
the administration of the oath by an official not competent to admin- 
ister it does not affect the validity of the bond, the irregularity of the 
justification, where there is notliing to show that the oath was not 
taken in good faith by the surety, may be waived by the Secretary of 
War, and in practice is waived and the bond accepted if otherwise valid. 
P. 62,367, Nov. 21 , 1893; (7.75, Nov. 5, 1894; 372, Sept. 24, 1894. The 
omission of affidavits of justification and the omission of a certificate 
as to the sufficiency of the guarantors of a bid does not affect the va- 
lidity of the guaranty and may be waived. C. 23365, June 6, 1908. 

The affidavit of j ustification of a surety should be dated, so that it may 
appear when he was worth the amount specified. P. 30, 233, Feb. 19, 
1889. 

I M 10. The failure to secure the consent of one of the bondsmen 
to the modification of a contract releases not only that bondsman, but 
all the bondsmen. C. 1244, Apr. 12, 1895. 

I M 11. Where the obligation of a bond is joint and several ^ (as 
is the case in official bonds), the estate of the deceased surety is not 
discharged by the death of the surety, and there is no necessity of a 
new bond. C. 4341, Sept. 9, 1902. 

I M 12. Where it became known to the United States that at the 
time a bond given to secure a contract was delivered to the agent of 
the United States it was incomplete by reason of the omission of the 
date of the contract, the names of the members of the commission 
representing the United States and the seals opposite the names of the 
principals and sureties, and these omissions were supplied before the ap- 
proval of the bond, but whether with the knowledge and consent of the 
sureties was not known. Held, that it should be assumed the supply- 
ing of the omissions was not with the knowledge and consent of the sure- 
ties and that a new bond should be required. C. 2765, Nov. 24, 1896. 

I M 13. Paragraph 561, Army Regulations, 1895 (581 of 1910), 
provides that "stockholders who are not officers of a corporation may 
be accepted as sureties for such corporation." Held, that a director 
or member of a board of trustees of a corporation are ''officers." C. 
8745, Aug. 9, 1900. Held, also, that the regulation does not apply 
where the treasurer of a corporation is not a stockholder, and he may 
be accepted as surety. The reason for the regulation is that usually 
officers of corporations are the principal stockholders and have the 

^ See par. 586, A. R., 1910, to same effect. Under section 19 of act of Congress of 
May 28, 1896 (29 Stat., 184), United States commissioners and all clerks of United 
States courts are authorized to administer oaths generally. (Ill Comp. Dec, 65.) 

^ If the obligation should be joint only, the estate of the deceased surety woula be 
discharged by death, and the surviving surety alone would remain liable on the bond. 



196 BONDS I M 14. 

• 

bulk of their fortunes invested in the business of the corporation, so 
that the Government would get little, if any, additional security by 
accepting them on the bond of the corporation. O. 272^2, Sept. 13, 
1910. Held, also, that if a stockholder of a contracting company 
becomes a surety on the company's contract and subsequently during 
the performance of the contract is elected secretary of the contracting 
company, he does not thereby become disqualifiea from continuing as 
surety. C. 28351, May 17, 1911. The objection that a stockholder 
who is an officer of a corporation is a surety on the bond of the cor- 
poration does not affect tne validity of the bond and may be waived. 
a 27302, Nov. 29, 1910. 

I M 14. It is not the practice of the War Department to accept a 
married woman as surety, and before an unmarried female surety 
will be accepted she is required to make oath that she is single in 
addition to justifying as required of other sureties, the affidavit show- 
ing that she is worth the sum stated in her own right. C. 1262, Apr. 
18, 1895; 2360, June 12, 1896; 2990, Mar. 8, 1897; 4-623, July 15, 
1898; 424.7, Apr. 9, 1910. 

I N. The law of the place at which a contract was made governs 
as to its interpretation, obligation, and legal effect, except where the 
contract is to be performed elsewhere, in wliich case tlie law that 
governs in these respects is the law of the place of performance ; but 
the law of the place where the contract was made or the act was done 
governs in respect to the formahties of execution and the capacity of 
the parties,^ An official bond, made to the United States, wherever 
actually signed, is, as has been held by the Supreme Court, a contract 
to be performed at Washington, and is to be governed as to its inter- 
pretation, obligation, and legal effect by the law of the District of 
Columbia.^ So where the river and harbor act of March 2, 1907 
(34 Stat., 1073), provided for the improvement of Bayou Teche, La., 
"upon the United States being secured against possible claims for 
damages resulting from the overflow of lands by reason of the lock 
and dam improvement, or from the draining of Spanish Lake," and 
the bonds given were not under seal but were executed in Louisiana 
where the laws do not provide for instruments under seal, recom- 
merided that, as the bonds were to be accepted by the Government 
and as the law as- to the formalities of execution is the law of the 
place where the acceptance is made, the bonds be referred to the 
district engineer officer at New Orleans for acceptance in the State 
of Louisiana. C. 24625, Sept. 1, 1909. 

1 O. The duty of taking and approving bonds under the War 
Department, whether taken by virtue of a statute or not, rests 
entirely in the War Department. The Treasury Department has no 
authority to review the action of the War Department so taken or to 
pass upon the sufficiency of the sureties on bonds given under section 
1191, R. S.3 P. 50, 118, Nov. 2, 1891; C. 18002, Apr. 18, 1908; 13893, 
July 23, 1909; and Aug. 6, 1909. 

* U. S. V. Garlinghouse (Fed. Cas. No. 15189); 9 Cyc, 671, and authorities cited. 

2 Cox V. U. S. (6 Pet., 172); Duncan v. U. S. (7 id., 435). 

'InU. S. V.Jones, 18 Howard, 92, the court said "the acts and decisions of the head 
of a department on subjects submitted to his jurisdiction and control by the Consti- 
tution and laws do not require the approval of any officer of another department to 
make them valid and conclusive. The accounting officers oi the Treasury have not 
the biuden of responsibility cast upon them of revising the judgments, correcting the 
supposed mistakes 01 annulling the orders of the heads of departments." 



BONDS! P. 197 

I P. Even after due performance of the conditions of a bond, it is 
contrary to the practice of the department to surrender such bonds. 
Where the records show that all tne conditions have been fully per- 
formed bondsmen in answer to a request are so advised. If the infor- 
mation so given should happen to be erroneous it is not believed its 
communication would operate as an estoppel, as the question of 
whether the bond is valid by reason of complete performance depends 
upon the question of whether or not the conditions have been per- 
formed in fact. C. 18610, Sept. 20, 1907. So, where a surety 
requested to be advised whether "deliveries have been satisfactorily 
completed" by his principal, held, there was no objection to advising 
him of the status of the contract in question, coupled with the caution 
that the information is not intended to compromise the interest of the 
United States, should it be found that the contract has not, in fact, 
been faithfully performed by the contractor. C. 18589, Sept. 21, 1905. 
So, held, where a bond was given for the disbursement of funds appro- 
priated for a Cuban exhibit. C. 8034, «^<^^- M> 1901. In case of a 
contractor's bond, the requirement of the act of August 13, 1894 (28 
Stat., 278), that the principal "shaU promptly make full payments to 
aU persons supplying it labor or material in the prosecution of the work 
provided for," and the requirement that the Secretary of War shall fur- 
nish a copy of the bond to labor and material-men, would deprive the 
Secretary of authority to surrender the bond. C. 7849, Mar. 16, 1900. 
But there is no objection to returning a bond that the United States 
refused to accept. 0. 7313, Nov. 18, 1899. Held, also, that in the ab- 
sence of a statute no executive officer had authority to cancel or nuUify 
a bond or release a surety thereon.^ G. 1999, Jan. 22, 1896; 8553, July 
5,1900; 5352, Aug. 22, 1900; 13145, Jan. 7, 1903; 22194, Nov. 18, 
1907. Such release can not be given even if other sureties of undoubted 
financial responsibility should be ^iven. C. 5352, Sept. 28, 1900. 

I Q. There being no law requiring bonds under the War Depart- 
ment to be joint and several, a bond so worded that each surety is 
bound as to a specific part only of the penalty and is not bound 
jointly and severally with the principal or with another surety is 
legaUy sufficient.^ C. 23165, Apr. 30, 1908. 

I R. The implied authority of a partner to execute contracts for 
the firm of which he is a member does not extend to contracts under 
seal — bonds, for instance. Therefore, where a partner signs a bond 
for the firm there should be filed with it evidence of an express 
authority from the other partners to sign for them.^ C. 5066, Sept. 
28, 1898; 6902, Aug. 19, 1899; 7348, Oct. 30 and Nov. 28, 1899; 
15894, Feb. 12, 1904; 21219, Mar. 12, 1907; 23734, Aug. 18, 1908; 
20947, May 10, 1909. Such express authority need not be under 
seal. _ C. 7348, Nov. 28, 1899; 23734, Aug. 18, 1908. The above 
principle has been applied where the names of all partners were 
signed to a bond but all the names were in the same handwriting, 

' 7 Op. Atty. Gen., 62. 

^ See, however, par. 576, A. R., 1910, which requires the official bonds of disbursing 
officers to be joint and several. 

3 In 20 Op. Atty. Gen!, 312, it was held: "The rule that one partner has no implied 
authority to bind his copartners by executing a bond in the firm name is well estab- 
lished. It can not be said, however, that the partners constituting a firm are power- 
less to authorize one of their number, or another proper person, to bind the partner 
ship by executing a bond to be used in the transaction of its business. The inlii- 
bition of the common-law rule referred to is against an implied power in one partner 
to execute the instrument without specific authority." 



198 BONDS I S. 

which suggested that one had signed for all. C. SOSl, Sept. 21, 1898. 
However, if the instrument, although sealed in fact, is of a character that 
does not require a seal, the presence of the seal may be disregarded and 
the instrument treated as a simple contract. C. 20989 B, July 31,1911. 

Where a contract is made with a partnership there is no legal 
objection to accepting as a bond for the performance of the con- 
tract one signed by less than all of the partners, as principals, the 
partners who do sign to sign as individuals, not as partners, and the 
partnership name not to be signed. O. 6902, Aug. 19, 1899. 

I S. A resolution of a board of directors which purports to vest 
the treasurer with "power to make and sign on behalf of the com- 
pany all contracts that may be necessary to carry on the business of 
the company" is prospective only and does not ratify the execution 
of a bond already made. G. 20319, Sept. 1, 1906. 

I T. Where a contractor gave a bond guaranteeing, among other 
things, to replace or repair all defects in cables which might develop 
in five years, and in case of failure to do so promptly to pay the 
Government on demand the cost of such repairs, and most of the 
work having been performed, the bond of $37,500 was considered 
unnecessarily large for the Government's protection; held that if a 
new bond in the penal sum of $5,000 were accepted, with recitals 
that the penalty of the existing bond is unnecessarily large and that 
the new bond is intended as a substitute for the present bond and is 
given to relieve the principal from the payment of premiums thereon, 
these recitals, together with the cessation of pajonents of premiums 
under the old bond, would make the loss fall entirely on the sureties 
under the new bond to the extent of the penalty of the same. Of 
course, the United States might sue under the old bond, but any loss 
recovered thereunder would be recoverable by the sureties on the 
old bond from the sureties on the new bond. C. 22194, Nov.. 18, 
1907. Also, where a contractor desired to substitute personal 
bondsmen in lieu of the corporate bond then in force in order to avoid 
the payment of another annual premium to the surety company; 
held there was no legal objection to the contractors presenting a 
further bond signed by personal sureties, but the effect would not 
be to release the old bond unless there was some special provision 
in the old bond which allowed it to be discontinued. Ordinarily the 
old bond would remain in full force as to all defaults of the contractor 
committed up to the date of the new bond, and thereafter the lia- 
bility of the two bonds would be joint. 

II A. Although there may be no express statutory provision 
requiring a disbursing officer to give a bond,^ the Government may 
req^uire such officer to give one, and where public property is intrusted 
to mdividuals, there being no law requiring a bond, the Secretary of 
War may properly require a bond.^ P. 51, 4^6, Jan. 28, 1892. 

' The form of official bond authorized, Dec. 31, 1900, secures the fidelity of the 
officer from the date of approval of the bond. C. 9482, Dec. 28, 1900. This change 
enables accounting officers to definitely fix the responsibility under each bond, so as 
to prevent bonds from overlapping. C. 9482, Dec. 28, 1900; Feb. 18, 1902. In prac- 
tice the date of approval is, for the convenience of accounting officers, on the first 
day of a month, in all cases except where the bond is the first one given. Sec. 1191, 
R. S., requires all officers of the Quartermaster's, Subsistence, and Pay Departments 
to give a bond, but it does not refer to other disbursing officprs. 

2 See U. S. V. Tingey, 5 Pet., 116; Jessup v. U. S., 106 U. S., 147; Moses v. U. S., 
166 U. S., 587; U. S. v. Rogers, 28 Fed. Rep., 607; 32 id., 890; 6 Op. Atty. Gen., 24, 
and note to "Bonds" I A. 



BONDS n B. 199 

II B. Where a bond had been given by a commissary officer con- 
ditioned to become void if he should during his holding and remaining 
in the office of commissary of subsistence with the rank of major, 
carefully discharge the duties of said office, and a new bond was given 
with the same conditions, held, the giving of the new bond would be 
cumulative, and would operate to make the sureties on both the old 
and new bonds responsible as to future transactions, but would not 
release the sureties on the old bond.^ C. 667, Nov. 24, 1894; 20591, 

' See Digest Dec. Second Comp., vol. 3, sec. 1356; II Dec. First Comp., 337. In 
V Comp., 918, it was held that where, under the act of Mar. 2, 1895 (28 Stat., 807), 
which provides tliat "every officer whose duty it is to take and approve official bonds 
shall cause all such bonds to be renewed every four years after their dates," an officer 
renews his bond by giving a bond dm-ing the same term of office, the new bond does 
not operate to release the sureties on the first bond from liability for future transac- 
tions, but the sureties on the old and new bonds would be jointly and severally liable 
therefor. As appears below in order to overcome the embarrassing effect of the above 
rule, the form of official bond was changed on Dec. 14, 1895, so that the condition would 
be that the officer should be bound under the bond "until a new official bond in his 
case shall be approved." Under this form of bond it was intended that the old bond, 
after the approval of a new one, should remain in force simply to cover any defaults 
that might have occurred prior to the date of approval of the new bond. C. 21784, 
July 10, 1901; 23656, July 27, 1908. On Oct. 17, 1906, in 26 Op. Atty. Gen. 70, the 
Attorney General, however, gave the opinion that a provision in an official bond short- 
ening the life of the bond from the entire period during which the office is held until 
such time as "a new official bond shall be accepted by the proper authority and sub- 
stituted " therefor, ran counter to the statute and would be without effect, but that 
in other particulars the bond would be good. As to this opinion of the Attorney 
General, the Judge Advocate General of the Army stated that the opinion "is under- 
stood to apply to a case where the form of bond is prescribed by statute and the officer 
is appointed for a limited term. Such is not the case with army officers. They are 
appomted for an indefinite teniu-e, practically during good behavior and until pro- 
moted, and the statute (sec. 1191, K. S.), provides simply that they shall, before 
entering upon the duties of their respective offices, give good and sufficient bonds to 
the United States, in such sums as the Secretary of War may direct. The statute la 
understood, and has been construed as imposing on the Secretary of War the duty of 
approving the bond both aa to form and aqjount." C. 20591, Jan. 26, 1907. Official 
bonds under the War Department are still conditioned that the officer shall continue 
to be bound "until a new official bond in his case is approved." 

The recent history of the form of disbursing officers' bonds is as follows: The form 
of official bond authorized by the Secretary of War, Dec. 14, 1895, was conditioned 
that the officer should at all times "henceforth during his holding and remaining in 
said office, until a new official bond in his case shall be approved by the Secretary of War, 
carefully," etc. C. 1769; the form authorized Dec. 31, 1900, was conditioned that 
if the officer "shall and do at all times during his holding and remaining in said office, 
from and including the date of approval of this bond by the Secretary of War thenceforth 
until the date of approval by the Secretary of War of a new official bond in his case, care- 
fully," etc. C. 9482, Dec. 28, 1900. The form authorized Mar. 13, 1902, amended the 
preceding form by substituting the words "proper authority" for "Secretary of War," 
the purpose being to include approval by the Assistant Secretary of War, who, pur- 
suant to the distribution of business in the Secretary's office, now passes upon and 
approves official bonds. C. 9482, Mar. 6, 1902. In 1907, the Secretary of War author- 
ized the commanding general, Philippines Division, to approve bonds of paymasters. 
C. 22296, Oct. 29, 1907. In such case the action of the Secretary of War if he approves, 
is expressed in the following language : ' 'Approval by division commander confirmed." 
C. 4216, Mar. 6, 1908. In April, 1901, the War Department adopted also a form of 
bond, the condition of which is so worded that it covers a recess appointment and con- 
tinues to secure the fidelity of the officer after his appointment and confirmation by 
the Senate "until a new official bond in his case shall be approved by proper author- 
ity." In the absence of such a provision, as held by the United States Supreme Court 
in U. S. V. Kirkpatrick, 9 Wheaton, 720, a bond given under a recess appointment for 
the fidelity of the officer would not cover his fidelity after his confirmation by the 
Senate, the offices being legally diffei*ent offices having different terms of tenure, etc. 
C. 3689, Nov. 29, 1897, and Jan. 10, 1906; 9482, Feb. 18, 1902; 20591, Jan. 26, 1907. 



200 BONDS II C. 

Jan. 26, 1907. So lield, also, where an ordnance storekeeper gave a 
new bond intending to release the surety on a former bond. U. 67 Ji., 
Nov. 2J,., 1894. So held, as to a paymaster. C. 733, Dec. 11, 1894. 

II C. Where the Army Regulations ^ (par. 990, A. R., 1863) pro- 
vided that the sureties on the bonds of certain disbursing officers 
should be bound jointly and severally for the whole amount of the 
bond, and should satisfy the Secretary of War that they were worth 
jointly double the amount of the bond, by the affidavit of each surety 
that he is worth that sum over and above his debts and Habihties, 
held, that although this regulation appears to contemplate that there 
shall be two or more sureties on the bond, the regulation is not 
mandatory and such a bond with one surety who justified in double 
the amount of the bond may be accepted. R. 41, 169, Ayr. 2, 1878. 
And where the sureties on such a bond made a joint affidavit that 
they were jointly worth double the amount of the bond over and 
above their debts and liabilities, heid, the justification did not com- 
ply with the regulation as the affidavit might be true and yet one of 
the sureties be worth nothing. R. 33, 272, Aug. 23, 1872. But held 
further that where the aggregate of the amounts in which the sureties 
on such a bond justify equals or exceeds double the amount of the 
bond, the objection that one or more of them individually justified in 
less than that sum may be and is in practice frequently waived. 
a 373, Sept. 24, 1894 and Dec. 21, 1898; 221^, Apr. 15, 1896; 3261, 
June 5, 1897, Jan. 8, 1898 and Mar. 31, 1904. Held, further, that 
each of the sureties on such a bond should sign his own separate 
affidavit, an affidavit signed only by the official administering the 
oath is irregular, but the irregularity may be waived. R. 34, 14"^ , 
Feb. 27, 1873, 271, May 19, 1873, and 337, June 28, 1873. So, also, 
where a disbursing officer having given a bond in the sum of $12,000, 
one of the sureties deceased, and a new bond was offered with only 
one surety in the sum of $6,000. Held, that the new surety would not 
be bouna either jointly or severally with the surviving surety for 
the whole amount required, and, therefore, the bond was not legally 
sufficient. P. 62, 351, Nm). 18, 1893. 

II D. The obligation of each surety on a bond given by a dis- 
bursing officer must be for the whole amount of the penalty; the 
regulation^ requiring that the sureties shall be jointly and severally 
bound for the whole amount of the bond. So, where the penalty in 
a quartermaster's joint and several official bond was $10,000, and the 
sureties, in executing the same, assumed to be bound only in the sum 
of $5,000 each, the words "for five thousand dollars" being written 
under each signature — held, that the instrument was contradictoiy, 
did not conform to the regulations, and should not be accepted.' 
R. 26, 327, Dec. 29, 1867. And similarly held in a case of a bond of a 
disbursing officer with a penalty of $40,000, where the sureties wrote 

' Par. 576, A. R., 1910, is to the same effect. The only statute on the subject is 
sec. 1191, R. S., which requires that all officers of the Quartermaster's Department, 
Subsistence Department, and Pay Department shall, before entering upon the duties 
of their offices, give bond in such sum as the Secretary of War may direct, faithfully 
to account for all public moneys and property which they may receive. 

2 Par. 576, A. R., 1910, is to the same effect. 

* In a contractor's bond, however, where the sureties are two or more surety com- 
panies, a form has been authorized whereby each surety is bound jointly and severally 
with the principal for a part only of the penalty. * 



BONDS II E. 201 

opposite their signatures, respectively, "for $35,000," "for $5,000." 
R. 84, 183, Mar. 20, 1873; C. 1974, Jo^n. 8, 1896; 2895, Jan. 27, 1897. 

II E. The official bond of a disbursing officer bein^ in terms 
limited to the office he held at the time he gave it, becomes moperative 
upon the promotion of such officer to a higher grade. He then enters 
upon a new office and a new bond is required. The old bond remains, 
however, a valid obligation to cover any defaults which may subse- 
quently be found to have occurred between the dates of its execution 
and the date of the officer's promotion. C. 1999, Jan. 22, 1896; 9482, 
Dec. 21, 1900. So, also, a disbursing officer's bond terminates as to 
future acts on the officer ceasing to hold the office, by resignation or 
otherwise, or, if the bond is conditioned that it shall be in force 
"until a new official bond in his case is approved," it will so terminate 
by the approval of a new bond, even though the officer continues to 
hold the same office. C. 9482, Dec. 21, 1900. 

II F. Where a disbursing officer has given a bond to continue in 
force while he holds his office until a new official bond shall be 
approved by the Secretary of War the bond continues in force until 
a new official bond shall be approved by the Secretary of War in 
fieu of it, notwithstanding that the officer may be performing duties 
that do not call upon him to disburse the money covered by the 
bond, as, for instance, in case of a commissary officer detailed on the 
General Staff (C. 4396, Feb. 19, 1904); or a quartermaster acting as 
treasurer of the island of Cuba {C. 4156, May 19, 1899); or a com- 
missary officer as colonel of a volunteer regiment (C. 6250, Nov. 7, 
1900), and the bond will continue in force to cover the officer's 
fidelity after he shall have been refieved from his nondisbursing 
duties and returned to his ordinary duties as a disbursing officer. 
C. 4156, May 19, 1899. Howevery^ where the surety is a company 
that charges a premium for performing the services of a surety it 
would be proper for the disbursing officer to stipulate with the surety 
that no premiums shall be paid during any period that he is on duty 
which involves no disbursement of pubfic money. Sueh an agree- 
ment, however, would not affect the liability of the surety to the 
Government. C. 4396, Feb. 19, 1904;^ 27191, July 26,1911. 

II G. A disbursing officer (a commissary officer) while under bond 
which provided that the officer should carefully discharge his duties 
' ' during his holding and remaining in office until a new official bond 
in his case shall be approved by the Secretary of War," was promoted 
during a recess of the Senate, received letters of appointment, accepted 
"^and qualified thereunder, lield that the word "office" in the bond 
meant the office named in the bond; that by accepting his appoint- 
ment to a higher grade and qualifying under the appointment he 
ceased to hold the former office named in the bond and became 
invested with the new office, the term of which new office was limited 
to the end of the next session of the Senate, and therefore that under 
section 1191, R. S., and 571 A. R. (575 of lylO), a new bond should 
be given to cover the new office, and Tield, also, that after confirmation 
by the Senate and the commissioning thereunder the office would be 
different from the one held during the recess of the Senate and a 
new bond would again be necessary.^ C. 3689, Nov. 29, 1897. So, 

' United States v. Kirkpatrick, 9 Wheat., 720; 2 Op. Atty. Gen., 336 and 500; 4 id., 
30. But Bee note to Bonds II B for a new form of bond in case of recess appoint- 
ments, the condition of which covers both oflBces until the approval of a new bond. 



202 BONDS II H. 

under a similarly worded bond, Tield that the office of captain and 
assistant quartermaster, United States Volunteers, is different from 
that of major of the Forty-third Infantry, United States Volunteers. 
C. 7091, Sept. 27, 1899. 

II H. Under the act of February 2, 1901 (31 Stat., 751), changmg 
the name of the office of "captain and assistant quartermaster" to 
"quartermaster," lield that existing commissions and official bonds 
remained in force. C. 10180, Apr. 10, 1901. 

II I. An officer of the subsistence department (regular estabhsh- 
ment) was appointed chief commissary with rank of lieutenant colonel 
in the Volunteer Army and gave the prescribed bond. Wliile serving 
in the latter capacity he was promoted in the subsistence department 
of the regular establishment. Held, that it was not necessary to 
require of him a bond on account of such promotion until it was 
proposed to place him on duty in the office resulting therefrom. C. 
4341, July IS, 1898. 

II J. Where an officer of the line was appointed captain and coni- 
missary of subsistence during a recess of the Senate, held that in 
view of the provisions of section 1191, K. S., and A. R. 571 (575 of 
1910), he should furnish the bond required before entering upon his 
duties under such appointment whether or not he had yet resigned 
his Hne commission. C. 2775, Nov. SO, 1896. 

II K. There is no statute or regulation prohibiting an officer of 
the Army from acting as a surety on the official bond of another 
officer. Such a relation, however, is not one to be favored. R. 34, 
164, Mar. 10, 187S; 38, 659, July 3, 1877. 

II L. Section 1191, R. S., provides that all officers of the Quarter- 
master's, Subsistence, and Pay Departments shall, before entering 
upon the duties of their respective offices, give good and sufficient 
bonds to the United States, in such sum as the Secretary of War may 
direct, faithfully to account for all public moneys and property 
which they may receive. The Secretary has made a number of regu- 
lations in furtherance of this section, and among them a regulation 
requiring bonds to be approved by the Secretary of War. Held, that 
the duty of approval not being prescribed by law may be properly 
delegated to the commanding general, Pliihppines division, u. 22296, 
Oct. 29, 1906. Held, further, that as the above section does not 
prescribe the form of bond, an indemnity bond signed only by a 
surety company and not signed by the officer as principal is a suf- 
ficient official bond under the statute.* C. 10277, Apr. 17, 1909. 

II M. Where a bond recited that the principal "has been ap- 
pointed assistant quartermaster in the Army of the United States," 
and the fact was he had been appointed an assistant quartermaster 
in the Volunteer Army, held, that the recital was not inconsistent with 
the fact, and that the actual office held could be shown by parol and 
the bond was valid. C. 8080, May 24, 1900. So held where the bond 
of an officer "detailed" as quartermaster from the Hne recited that 
he had been "appointed" as quartermaster. C. 22292, Oct. 30, 1907. 
So, where a bond recited that the principal had been appointed 
general treasurer National Home for Disabled Volunteer Soldiers 
"in the Army of the United States," the quoted words being incorrect, 
held, the office was sufficiently described by other words of description 
and the erroneous words should be disregardgd. C^. 11337, Oct. 4, 1901 . 

' See " Bonds " IV, where a similar opinion was given under sec. 1225, R. S. 



BONDS 11 N. 203 

II N. Paragraph 583, A. R. (589 of 1910), provides that: "In case 
of financial embarrassment, failure, or other. disqualifying cause on 
the part of the surety to a bond, the Secretary of War will require the 
bond to be renewed to his satisfaction, upon notification to the 
principal. Official bonds may not be renewed at the will of the 
principal or surety, but only by direction of the Secretary, and the 
substitution of one corporate company for another as surety on a 
bond will not be permitted except by direction of the Secretary, or 
after the bond has run for a period of four years, when a renewal 
thereof is required by law." A disbursing officer was bonded in a 
surety company, and was offered a lower rate by another company, 
but after correspondence between the old company and the new 
company the new company withdrew its low offer; the old company, 
however, offered to reduce its rate to that offered by any other 
company. The result was the disbursing officer became dissatisfied 
with the old company and asked to have his bond renewed in any 
company but the old one. Advised, that under the above regulations 
the reason was not sufficient to justify the submission of a new bond, 
involving as it would the trouble and expense of examining and 
approving a new bond and closing the accounts under one bond and 
opening them under another. C. 25^62, Aug. 8, 1910. 

II O. A bond given to secure the faithful disbursement of funds 
relating to the military government of Cuba should not be filed in the 
Treasury Department as in the case of officers charged with the dis- 
bursement 01 public money of the United States but should be filed in 
the Insular Bureau. C. 10551, Sept. 6, 1905. 

II P. Where a bond was given by the treasurer of the Military 
Academy to cover funds coming into his possession which were not 
strictly public funds, held that the bond should run to the superin- 
tendent of the Military Academy in trust for the cadets of the academy 
and should be filed either at the headquarters of the Military Academy 
or in the office of The Adjutant General of the Army, through which 
the Military Academy and its affairs are administered. C. 26449, 
Apr, 19, 1910, arid Apr. 29, 1910. 

II Q. The act of March 2, 1895 (28 Stat. 807), provides that: 
"Hereafter every officer required by law to take and approve official 
bonds shall cause the same to be examined at least once in every two 
years for the purpose of ascertaining the sufficiency of the sureties 
thereon ; ' and every officer having power to fix the amount of an 
official bond shall examine it to ascertain the sufficiency of the amount 
thereof and approve or fix said amount at least once in two years and 
as much oftener as he may deem it necessary." Held, that the first 
half of the above provision relating to the sufnciency of the "sureties" 
is sufficiently complied with as to bonds on which a corporation is 

1 The provision of the first half of the act of March 2, 1895, requiring the officer to 
cause the bonds to be examined as to the sufficiency of the sureties is supplemented by 
G. O. 29, A. G. O., May 1, 1895, which requires the necessary examination to be made 
by "the heads of bureaus or departments of the War Department under whom or in 
whose department there are bonded officers whose bonds are taken and approved by 
the Secretary of War," and prescribes the form of certificate to be obtained as to the 
sufficiency of sureties. The order makes this certificate when properly filled out and 
signed the evidence of the present sufficiency of the bond. The certificate should not 
be referred to the Secretary of War but should be acted on by the head of the bureau 
by approval or by requiring a new bond as provided in the order, the bond in the latter 
event to be submitted to the Secretary for approval. C. 1414, June 3, 1895. 



204 BONDS IT E. 

surety, if the corporation files periodically in the War Department the 
financial statement required by paragraph 574, Army Regulations 
(585 of 1910), and that General Order 29, Adjutant General's Office, 
May 1, 1895, has no application to a bond on which a corporation is 
a surety. C. 2516, Aug. 12, 1896. Held, that the second half of the 
above provision relating to the sufficiency of the ^'amount" of the bond 
is sufficiently cornplied with if the chief of each bureau or department 
having bonded officers reports to the Secretary of War twice a year a 
list of all the bonds of officers serving under him which at the time of 
making the report shall have been in existence as much as 18 months, 
giving the names of the officers and the amounts of their respective 
bonds, and the greatest amounts of money liable to be handled bv 
them respectively at one time during the succeeding two and a half 
years, and also recommending the action to be taken by the Secretary 
of War with respect to the amount of the bond of each officer, that is, 
whether its present amount should be "approved" or whether a new 
amount, should be "fixed," owing to the circumstances of that 
officer's duty, etc., and if a new bond is to be fixed, what it should be; 
and for the Secretary of War to act on the recommendation made by 
the chief of bureau. Thereupon the statement and certificate pro- 
vided for in "General Order 29, Adjutant General's Office, May 1, 
1895, would need to be sent to those officers the amount of whose bond 
had been "approved." ' C. I414, June 3, 1895. Held, further, that 
where an inspector has investigated the matter of sufficiency of the 
amount of the bond and recommended approval of the amount of the 
existing bond, an approval of the recommendation constitutes a com- 
pliance with the second part of the act. C. ^18, Dec. 1, 1896. 

II R. Where a bond for the safe-keeping of pubUc property was 
conditioned that the obligor should "carefully discharge the duties 
of his office or employment" and a subordinate of the obligor, whom 
the obligor was not empowered to select or discharge, received per- 
sonal physical custody of certain property, which possession was not 
shared with the obligor, Jield that the obligor was required only to 
discharge carefully his own duties, including the important duty of 
supervision,, and that if he did this fully and completely he would 
not be liable for a loss resulting from the neglect or misconduct of his 
subordinate. C. 3102, Apr. 19, 1911. And where under the same 
facts as above set out a bond was further conditioned that the 
obligor should faithfully and honestly account for all public property 
which might be intrusted to "his care or custody," held that the 
obligor would not be liable for the loss of property which did not 
come into his personal physical possession. 0. 8102, Apr. 19, 1911. 

III A. The giving of bonds to secure the performance of contracts 
made for furnishing supplies, doing work, etc., for the War Depart- 
ment is not required by statute,^ but is a subject of administrative 
regulation.^ So, where the amount involved in a contract for com- 

1 The above procedure is still followed in the War Department. 

2 The act of Aug. 13, 1894 (28 Stat. 278), as amended by the act of Feb. 24, 1905 
(33 Stat. 811), directs that bonds shall be required with formal contracts for the 
construction of, or repairs upon, public buildings and public works, and that such 
bonds shall contain a provision that " the contractor or contractors shall promptly 
make payments to all persons supplying him or them labor and materials in the 
prosecution of the work provided for in such contract." The statute does not pre- 
scribe the amount of the penalty, but this has been fixea by the Secretary of War 
in par. 577, A. R., 1910. 

3 See pars. 577-589, A. R., 1910. 



BONDS III B. . 205 

missary stores was 'small, advised that the Commissary General be 
authorized to approve the contract without a bond.^ P. 16, 167, 
Apr. 9, 1887. So, advised that the Secretary of War was empowered 
to dispense with bonds to secure the performance of contracts for 
furnishing meals to recruiting parties and recruits; he being indeed 
authorized to dispense at discretion with all contractor's bonds, 
where such are not specifically jequired by statute. P. 65, 233, 
June 12, 1894; O. 2074, Mar. 5, 1896. 

Ill B. Where a bond is required for the due performance of a 
contract, held that in the absence of a statute or regulation to the 
contrary, the approval of the contract includes the acceptance of 
the bond, and that an additional written approval or acceptance 
of the bond is not necessary. C. 22961, Mar. 24, 1908. 

Ill C. There is no legal authority, after a contract has been com- 
pleted, for assigning the bond to creditors of the contractor (whom 
he owes for materials furnished him) to enable them to sue him upon 
it in the name of the United States.^' P. 61, 16, Aug. 1, 1893. 

Ill D. Where a contract has been partly performed, and, by 
reason of the surety on a contractor's bond being no longer considered 
sufficient security a new bond has been required, the penalty may be 
proportionately reduced by reason of the partial completion of the 
contract and by reason of the amount of the retained percentages 
held by the Government. C. 23265, Feb. 16, 1909; 27937, Mar. 3,1911. 

Ill E. Paragraph 571, Army Regulations, 1908 (577 of 1910), pro- 
vided that the amount of penalty in a contractor's bond will not be less 
than one- tenth nor more than the full amount of the consideration of 
the contract. Where the amount to be expended under a contract 
Exceeded $250,000 and the bond given in accordance with the estimate 
was only $25,000, held, the requirement of the regulation could 
legally be waived and the contract be approved. C. 23887, Sept. 25, 
1908. So, also, where a contract was made at Fort Gibbon, Alaska, 
for a storehouse and it appeared that all materials were furnished by 
the Government, the contract being for labor only, and that the 
contracting quartermaster undertook to supervise personally all labor 

* See the following act of Apr. 10, 1878 (20 Stat. 36), as amended by the act of 
Mar. 3, 1883 (22 Stat. 487): "That the Secretary of War is hereby authorized to 
prescribe rules and regulations to be observed in the preparation and submission and 
opening of bids for contracts under the War Department; and he may require every 
bid to be accompanied by a written guarantee, signed by one or more responsible 
persons, to the effect that he or they undertake that the bidder, if his bid is accepted, 
will, at such time as may be prescribed by the Secretary of War or the officer authorized 
to make a contract in the premises, give bond, with good and sufficient sureties, to 
furnish the supplies proposed or to perform the service required. If after the accept- 
ance of a bid and a notification thereof to the bidder he fails within the time pre- 
scribed by the Secretary of War or other duly authorized officer to enter into a con- 
tract and furnish a bond with good and sufficient security for the proper fulfillment of 
its terms, the Secretary or other authorized officer shall proceed to contract with 
some other person to furnish the supplies or perform the service required, and shall 
forthwith cause the difference between the amount specified by the bidder in default 
in the proposal and the amount for which he may have contracted with another 
party to furnish the supplies or perform the service for the whole period of the proposal 
to be charged up against the bidder and his guarantor or guarantors, and the sum may 
be immediately recovered by the United States for the use of the War Department 
in an action of debt against either or all of such persons." 

2 Since the opinion in the text the act of Aug. 13, 1894 (28 Stat., 278), amended by 
the act of Feb. 24, 1905 (33 Stat., 811), has been enacted. It provides for contractora 
giving a bond to secure the payment of labor and material-men, and for suit by labor 
and material men on such bond. 



206 BONDS III r. 

employed, and in view of these circumstances 'it was proposed to 
secure the performance of the contract by a cash deposit of 15 per 
cent in lieu of a bond, as a bond would be very difficult to secure at 
such a place, held, that as a bond was required by statute for the benefit 
of persons supplying labor, it could not be waived, but as the statute 
only required a bond, the amount of the penalty being a matter of 
regulation only, the regulation could be waived and the penalty fixed 
in such amount as might be deemed by the Secretary of War appro- 
priate under the circumstances of the case, G. 29269, Nov. 29, 1911. 
Ill F. Under the act of March 3, 1883 (22 Stat., 487), a bidder 
may be required by the Secretary of War to accompany his bid with 
a guaranty that upon notice to him of the acceptance of his bid he 
will enter into contract and furnish bond for the proper fulfillment of 
his contract. Held, that if under such a requirement a bond should 
not be given, and a contract should be entered into with some other 
person, the statute does not require such contract so entered into with 
the other person to be accompanied by a bond,^ P. 60, 285, July 6, 1893. 

III G, Where the sureties on a contractor's bond are individuals 
as distinguished from surety companies, and there is a failure of finan- 
cial responsibility on the part of one or more of the sureties so that 
there is a probability that the bond is no longer good for the required 
amount, lield, that there is no method by which additional security on 
the bond can be required.^ 0.28995, Sept. 25, 1911. 

IV A. A bond executed in his official capacity by the president or 
other officer of an incorporated college or university' to secure arms, 

* There is no statute res;ulating the subject of contractors' bonds other than that con- 
tained in the act of Aug. 13, 1894 (28 Stat. , 278), as amended by the act of Feb. 24, 1906 
(33 Stat., 811), which refer to bonds to secure the payment of persons supplying labor 
and material, but the Secretary of War, pursuant to his implied authority tx) require a 
bond at any time in connection with public business, has provided in par. 577, A. R., 
1910, for contractors' bonds, in case of contracts for supplies or services. 

2 Sec. 4 of the act of Aug. 13, 1894 (28 Stat., 279), provides for additional security 
where the surety is a corporation; sec. 5 of the act of Mar. 2, 1895(28 Stat., 807), provides 
for the renewal and strengthening of official bonds when necessary, the surety being an 
individual, and par. 589, A. R., 1910, provides for additional security in the case of 
official bonds, 

^ The issue of ordnance to educational institutions was regulated by sec. 1225, R. S., 
which provides that: "The Secretary of War is authorized to issue, at his discretion 
and under proper regulations to be prescribed by him, out of any small arms or pieces 
of field artillery belonging to the Government and which can be spared for that pur- 
pose, such number of the same as may appear to be required for military instruction 
and practice by the students of any college or university under the provisions of 
this section; and the Secretary shall require a bond in each case in double the value 
of the property, for the care and safe-keeping thereof, and for the return of the same 
when required." The above portion of sec 1225, R. S., was replaced by the act of 
Sept. 26, 1888 (25 Stat. 491), which in part provides that: "The Secretary of War is 
authorized to issue, at his discretion and under proper regulations to be prescribed by 
him, out of ordnance and ordnance stores belonging to the Government, and which 
can be spared for that purpose, such number of the same as may appear to be required 
for military instruction and practice by the students of any college or university under 
the provisions of this section, and the Secretary shall require a bond in each case, in 
double the value of the property, for the care and safe-keeping thereof, and for the 
return of the same when required." This provision was subsequently amended by 
the act of Feb. 26, 1901 (31 Stat. 810), and the act of Apr. 21, 1904 (33 Stat. 226), so 
as to require the approval of the governor of the State or Territory. The other changes 
are immaterial. The identical wording of most of the provisions leaves the early 
opinions of the Judge Advocate General still valuable. See G. O. 231, W. D., Nov. 
16, 1909, for instructions regulating the execution of bondp under the above act. As 
to stipulation that suit may be brought in the court where the contract is executed, 
see Harvard L. R., Vol. XXVI, No. 4, page 300, citing Mittenthal v. Mascagni, 183 
Mass., 19 (66 N. E., 425). 



BONDS IV B. 207 

etc., issued under section 1225, E,. S., can not properly be accepted as 
binding the corporation without evidence that, by tne act of incor- 
poration or otherwise, such officer is legally empowered to act for and 
bind the institution. R. 4i, 499, Feb. 1, 1879, 647, Aug. 8, 1879; 43, 
70, Oct. 29, 1879; C. 768, Oct. 24, 1903, and Jan. 14, 1908. 

IV B. Where the bond offered purported to be signed by the 
president of the corporation, it should oe shown in connection with 
the bond that the person so signing had been duly elected such presi- 
dent by the corporation or by a managing body authorized by the 
articles of incorporation to elect him. P. 29, 307, Jan. 15, 1889; C. 
9167, Oct. 23, 1900; 3543, May 24, 1906. However, where it is a 
matter of common knowledge that certain persons hold certain official 
positions, such as presideift and secretary of the board of directors of 
city trusts of the city of Philadelphia, the proper evidence of that fact 
may be waived, as the bond is valid without such evidence. C. 2366, 
June 21, 1910. Also, where the value of the ordnance stores is small 
and it appears from letter heads, the certificate of some officer, or 
other evidence not ordinarily considered sufficient, that the person 
signing is probably president or that he has been authorized to 
execute the bond. V. 717, Ayr. 18, 1908. As where the value is 
$113.97. C. 7666, Aug. 26, 1909. Where the value is $260. C. 
13024, June 10, 1909. Where the value is $352.60. O. 20827, Jan. 
8, 1907. 

IV C. Where a board of trustees controlling a corporation passed 
a resolution empowering the president of the board "to negotiate and 
carry on any business which, in his judgment, tended to the welfare 
of the institution," advised that this resolution was not sufficiently- 
specific to authorize the president to execute an instrument under 
seal, such as the bond required by section 1225, R. S. P. 39, 158, 
Mar. 1, 1890. A by-law to the effect that in the recess of the board 
of regents an executive committee of the board should "have general 
care of all matters pertaining to the welfare of the university," held 
not sufficient to empower such committee to enter into so legally 
formal and binding an engagement as the giving of a bond. P. 63, 
467, Feb. 10, 1894- 

IV D. A general authority from the board of regents of a uni- 
versity to their president to execute such bonds as may be needed 
from time to time to secure ordnance stores issued is sufficient to 
authorize the execution of bonds. C. 3543, Jan. 8, 1909. 

IV E. Where the trustees, regents, etc., have, by a resolution 
or vote of the board, duly authorized their president, or other officer, 
to execute the bond for the corporation, there should be furnished, 
with the executed bond, as evidence of the legality of the execution, 
an extract of the minutes of the proceedings of the board, fully 
setting forth the adopting of the resolution giving the requisite 
authority, such extract being certified by the secretary, or other 
proper custodian of the records, under the seal of the corporation 
as a true copy of such minutes. The certificate, or affidavit, of the 
secretary that such a resolution, giving a copy of it, was adopted 
is not a sufficient substitution for the record evidence, and where 
the execution by the president rests only upon such a certificate 
the bond will not be accepted. The only proper evidence of the 
proceedings of a body whicn keeps a record is tne record itself or a 
transcript duly authenticated by the legal custodian, and where it 



208 BONDS IV F. 

exists its place can not be supplied by the mere statement of the 
secretary or other official of tne corporation.^ P. 29, 166, Jan. 5, 
1889; 55, 180, Aug. 24, 1892; G. 64I, Nov. 19, 1894; 2260, May 4, 
1896; 2038, Aug. 28, 1899; 3704, Mar. 1, 1907; 3543, Jan. 20, 1908. 

IV F. Where a resolution of a board was passed authorizing the 
president to execute a bond, the resolution not giving the name 
of the president, and a bond is offered purporting to be signed by 
the president, held, that a copy of the record showing that the per- 
son whose name is signed as president was such officer should accom- 
pany the bond.2 C. 768, Sept. 1, 1906; 942, Jan. 11, 1907; 831, 
Nov. 16, 1908. This copy may be waived where one is already on 
file with another recent bond. C. 768, Sept. 1, 1906; 3104, ^pr. 2, 
1910; 918, June 30, 1910; 18951, Nov. 17*1910. 

IV G. The bond offered must be executed by the proper obligor 
and legal principal. If executed by a corporation as such, the 
name as signed must be the corporate name; i. e., the same as that 
given in the articles of incorporation expressed in fuU.^ P. 42, 113, 
July 24, 1890; 62, 46O, Dec. 7; 1893; 63, 117, Jan. 2, 1894; C. 412, 
Aug. 14, 1907; Oct. 16, 1907; 836, June 17, 1908; Feb. 15, 1909 
Aug. 9, 1910. Where the corporation as created by the legislatuiv 
is a body of persons, as "trustees," or "board of trustees," or 
"regents, etc., the bond must be executed in the corporate name 
of this body by some one duly authorized thereby and not in the 
name of the "college" or "university," the latter being merely an 
institution of learning or property, having no legal existence as 
a person. P. 29, 46 1, Jan. 24, 1889; 30, 304, Feb. 21, 1889; 48, 
226, July 15, 1891; G. 28, July 18, 1894; 2038, Feb. 5, 1896, and 
Aug. 28, 1899; 16109, Mar. 31, 1904; 3168, June 4, 1906; 942, Feb. 
25, 1907. The name of the corporation as it appears in the body 
of the bond and in the signature should be the same. P. 62, 122, 
Oct. 16, 1893; G. 27423, Nov. 30, 1910. If the name is impressed 
on the seal, it should agree with that of the execution, though if 
the latter be correct a variation in the seal will be immaterial. 
P. 31, 300, Apr. 6, 1889. 

IV H. The bond of a corporation must be signed for it by the 
officer of the corporation or some other person authorized to do so. 
If the corporation consists of a certain body of persons, or if such a 
body be specifically designated in the articles of incorporation as 
empowered to authorize such acts as the execution of bonds for the 
corporation, the authority can not be delegated to other persons. 
Thus where, under the articles, the power is vested in a board of 
trustees, it would not be legal for such board to delegate the authority 
for executing the bond to an executive committee of the board. P. 29, 
307, Jan. 15, 1889; 39, 475, Mar. 20, 1890; 56, 278, 308, Nov. 3 and 
10, 1892; C. 8870, Aug. 29, 1900; 603, July 30, 1906. Where the 
articles of incorporation do not recognize such a body as an "execu- 
tive committee ' of the trustees, regents, etc., as empowered to act 
for the corporation, but simply devolve the management and con- 
trol of the corporation upon a board of trustees, etc., a bond executed 
or authorized to be executed by such a committee will not be accepted 

1 See "Bonds," IV B, to the same effect, and note under Bonds IV A for instruc- 
tions of the War Department to same effect. i 

2 See par. 584, A. R., 1910. 

3 See "Bonds," I G 1, 



BONDS IV I. 209 

as sufficient. In such a case it is the board which should authorize 
the execution of the obhgation. P. 64, 370, Apr. 16, 1894; 65, 88, 
48, 102, May 8, 18, 23, 1894; C. 3704, Feb. 15, 1898; 9167, Nov. 20, 
1900; 2260, Sept. 8, 1906; 16109, Apr. 18, 1904, Apr. 30, 1909. 
Where the articles of incorporation declared that the corporation 
should consist of and be controlled by certain trustees, but recog- 
nized an executive committee, in providing that such committee 
should, "under the direction of the board of trustees, have a general 
supervision" of the affairs of the college and the property of the cor- 
poration," held, that such words were not sufficient to empower the 
executive committee to bind the corporation in so important a 
matter as the execution of a bond. P. 64, 274, Mar. 31, 1894- Where 
the act creating a university vested the management of its affairs in 
a board of trustees, and provided that the board might entrust "all 
routine business" to an executive committee, held that a bond exe- 
cuted pursuant to a resolution of the executive committee was not 
properly authorized, as it did not constitute "routine business" of 
an educational corporation. C. 323, Sept. 15, 1894- The board of 
trustees of a university estabhshed a rule that "during the intervals 
between the meetings of the board of trustees, all authority needful 
for carrying on the operations of the university shall be exercised by 
the prudential committee," and the prudential committee by a res- 
olution authorized the chancellor to execute a bond for the safe- 
keeping of ordnance stores, held that it was questionable whether the 
rule contemplated the giving of such a bond as being "needful for 
carrjang on the operations of the university." C. 18951, Dec. 20, 
1910. The act of incorporation provided for an executive committee 
whose duties should be prescribed by the by-laws of the board of 
regents. Such by-laws authorized the committee "to transact all 
such business as may from time to time be required by the board." 
Held, that a bond executed pursuant to resolution of the committee, 
without any specific authority or requirement by the board being 
shown, could not be accepted, but that, if the board could not readily 
be convened, a personal bond of some individual, with sureties, 
should be substituted. P. 64, 327,^ Apr. 7, 1894; G- 2687, Oct. 17, 
1896. So, where' the character of incorporation of a college vested 
the "full control of the affairs of the college" in a board of trustees, 
and the board, by vote, devolved upon an executive committee 
power to "act for the trustees," held that even if this delegation 
were legal, such indefinite action, while authorizing the committee 
to transact ordinary business, was not sufficient to empower it to 
exercise the special discretion involved in the execution of a sealed 
obligation binding the corporation to the United States. P. 65, 48^, 
May 8, 1894- So, where a board of trustees passed a resolution 
giving an executive committee authority to "exercise all the power 
of the board of trustees not inconsistent with the acts and resolutions 
of the board, subject, however, to reversal or modification of its 
action by the full board," held, that in the absence of knowledge of 
the acts and resolutions of the board it could not be determined 
whether the committee had been given authority to sign a bond to 
secure ordnance stores, and that the attempted delegation of author- 
ity was not legal. C. 603, Aug. 30, 1906. 

IV I. A bond furnished by any incorporated college or university 
should be accompanied by a duly certified copy of the charter or 

93673°— 17 14 



210 BONDS IV J. 

articles of incorporation showing that the institution is a corporation 
and has power to enter into the obligation. P. 63, 322, Jan. 29, 1894; 65, 
1 90, and 1 91 , June 4, 1 894; C. 1 2568, June 28, 1 906. The copy should 
be authenticated by the certificate of the official who is custodian of 
the record of the same. A certificate by a United States commis- 
sioner would be of no effect. P. 64, 44, Feb. 23, 1894. Where the 
copy of the papers showing incorporation was certified by a county 
recorder who had no seal, held that if he had no seal which he could 
affix, his official character should be certified to by the county official 
who was the custodian of the record of his election and qualification. 
P. 64, 274, Mar. 31, 1894. 

IV J. Though bonds tendered under section 1225 R. S. have usually 
been those in which the corporation controlling the institution is prin- 
cipal, it is not essential that the corporation should be the principal. 
The bond of an individual as principal — the president or other officer of 
the institution or other person in a private capacity — may properly be 
accepted if the security is deemed sufficient. R. 42, 598, Apr. 24, 1880; 
C. 13024, Oct. 24, 1908. Where the college was not incorporated, and 
therefore could not enter into the bond, and its trustees were merely 
appointees of certain regents of education in charge of all the public 
educational institutions of the State, recommended that a personal 
bond be required. P. 65, 31, May 7, 1894.' A ''Military and Agri- 
cultural college" was not a corporation but a branch or ' 'department" 
of the State University, a corporation, by which it was governed, held 
that, not being a legal person, it had not the capacity to enter into a 
bond, but that the bond should be in the name of the corporation and 
its execution should be authorized by the board of trustees of the 
university, or — if they could not be assembled for the purpose — that 
an individual bond should be furnished. P. 64, 110, Mar. 3, 1894; 
C. 9167, Nov. 20, 1900. A State university, which, though managed 
by trustees appointed by the State, is not incorporated, is only a piece 
of property of the State, having no personal existence or capacity to 

five a bond. In such case, if the trustees are not incorporated, the 
ond for arms furnished should be a personal one. P. 64, 304, Apr. 
5, 1894; C- 3168, June 4, 1906. Where the university was not an in- 
corporated institution, but property belonging to a Territory, by 
which it was carried on through trustees, and the legislature had made 
no provision for a special bond, lield that the case was one in which a 
personal bond should be required. P. 4I 377, July 1, 1890; 55, 322, 
Sept. 8, 1892; C. 23553, July 7, 1908. Where such an unincorporated 
university was the property of a State, held that the State would be 
the proper principal in the bond. P. 4^, 119, July 24, 1890. 

IV K. No form for the bond being prescribed by section 1225, 
R. S., the Secretary of War may, if he deems the security ample, accept 
a bond with one surety, or he may even accept the bond of the cor- 
poration without sureties. In general, however, it wiU be safer to 
require sureties; such a requirement being also in accordance with 
the general rule governing bonds given to the United States. Sure- 
ties to bonds given by colleges should in general be required to 
justify in the usual manner. R. 39, 312, Nov. 26, 1877. So held, 
also, under the act of September 26, 1888 (25 Stat. 491), where it was 
advised that, the city or Philadelphia as trustee for the Girard Col- 

1 See "Bonds," I HI. 



BONDS IV L. 211 

lege fund being the principal, sureties might well be dispensed with. 
P. 59, 176, Apr. 25, 1893; C. 768, June 8, 1900; 2366, June 26, 1906. 

IV L. Held, that a bond of indemnity of a security company 
wherein the company would be the only obligor might, in the dis- 
cretion of the Secretary of War, legally be accepted in place of the 
usual bond, given under section 1225, R. S., wherein both the college 
and the surety are obligors. Such acceptance would not per se release 
the college from its liability as bailee to take care in preserving and 
duly returning the arms, but the instrument should be executed in 
such form as to leave no question as to such liability continuing.* 
P. 64, Feb. 27, 1894. 

IV M. A form of bond presented for acceptance which failed to 
recite that the college was of a capacity to educate 150 male students, 
the complement required by the act of September 26, 1888 (25 Stat. 
491), but stated its capacity as extending to the education of 80 only, 
held defective and not legally acceptable. P. 65, 4^, May 8, 1894- 
It should be specifically stated in the bond that the capacity was for 
the education of 150 male students. P. 65, 182, June 1, 1894- 

IV N. Where the penalty of the bond as offered was twice as great 
as the sum for which the president was, by resolution of the board, 
authorized to give bond, rield that the bond could not be accepted 
and that a new bond should be furnished. P. 35, 82, Sept. 6, 1889. 
So, held also, where the penalty of the bond as offered was $1,052, 
while the resolution of the board authorizing the bond authorized a 
bond m the sum of $1,051.20. C. 3543, Apr. 23, 1910. So, also, 
where the penalty of the bond as offered was $17,592.08 while the 
resolution of the board authorized a bond in the sum of $17,574.28. 
C. 24272, Bee. 30, 1908. 

IV O. The obligor and sureties should be bound without condition 
or reservation. Where a bond offered by a college contained a pro- 
vision to the effect that to satisfy any liability incurred thereunder, 
recourse should be had to the property of the college before the prop- 
erty of the sureties was resorted to, advised that such bond be not 
accepted by the Secretary of War. R. 38, 340, Oct. 20, 1876. 

IV P. The regulations governing the issue of ordnance stores to 
educational institutions require that the bond given to secure the 
safe-keeping of the stores snail be in double the value of the stores 
issued. Held, there was no legal objection to accepting a bond in 
excess of double the value of the stores, the excess to cover future 
issues as well as stores already issued. C. 942, Nov. 22, 1909. 

IV Q. As the statute requires the bond shall be in double the value 
of the ordnance stores issued a bond which lacks $20 of being double 
such value is defective. C. 950, Jan. 24, 1908. But a bond that 
lacked 55 cents of being double the value of the stores issued was held 
to be a substantial compliance with the statute. C. 1766, Jan. 5, 1905. 

IV R. Wliere a bond recited that certain ordnance stores "have 
been issued," whereas the bond was intended to cover stores not yet 
issued, the language should be changed to ''to be issued." C. 1828, 
Nov. 18, 1895; 24272, Dec. 30, 1908. But where the bond failed to 
state whether the stores had been issued or were to be issued, the 
space for that purpose being left blank, the omission may be waived. 
C. 1711, Oct. 17, 1906. 

' See "Bonds" II L, where a similar opinion was given under sec. 1191 R. S. 



212 BONDS V A. 

V A. Section 1191, R. S., provides that "all officers of the Quarter- 
master's, Subsistence, and ray Departments, * * * shall before 
entering on the duties of their respective offices, give good and suffi- 
cient bonds to the United States,^ in such sums as the Secretary of 
War may direct; faithfully to account for all public moneys and 
property which they may receive." Held, that while this section 
does not specifically vest m the Secretary of War the power to decide 
upon the sufficiency of the sureties to bonds, still by implication it 
does so as he is the only official mentioned as having any auij to per- 
form in passing upon bonds, and it is not reasonable to suppose Con- 
gress intended to divide between several officials the duties involved 
in passing on bonds. The Secretary may, therefore, legally accept 
security companies as sureties on such bonds, as in the case of con- 
tractors' bonds.2 P. 50, 118, Nov. 2, 1891. 

V B. Wliere the regulations regarding corporate sureties required 
there should be filed in the War Department a copy of the record of 
the selection and qualification of the officers, as well as a copy of the 
by-laws or other records, authorizing certain officers of the corpora- 
tion to execute bonds in its behalf, and there was attached to the 
bond a certificate signed by "A, secretary," to the effect that "B is 
the president and A is the secretary duly elected and qualified" to 
execute the bond. Held, this certificate is not proper evidence for 
the reason that the facts rest. on the certificate of the secretary, in- 
stead of appearing as they should from certified copies of the records.^ 
C. 1482, June 21, 1896; 3946, Aug. 16 and 22, 1906. Such a defect 
may be waived by the War Department where the value of the prop- 
erty is small, as, for instance, $113.97. 0. 7666, Aug. 26, 1909. 

V C. A corporate surety continues to be bound by a bond notwith- 
standing the principal may fail to pay the company the premiums 
agreed upon. The United States not being a party to the arrange- 
ment between the principal and the surety whereby the surety is paid 
certain premiums in consideration of its acting as surety, it would not 
be affected by the failure of the principal to pay the premium. An 
attempt by the surety to cancel the bond is without legal effect. 
C. 8553, July 5, 1900; 22571 , Jan. 6, 1908. The Habihty of the surety 
on a bond for the performance of a contract continues until the con- 
tract is satisfied by performance or by the payment of damages for 
the breach thereof. The United States therefore has no interest in 
the matter of payment of premiums to a surety company and will not 
undertake to decide when the contractor should discontinue the pay- 
ment of premiums. C. 12359, Apr. 7, 1902. 

V D, Where a surety company has furnished the War Department 
with the proper evidence of the authority of an agent to bind the com- 

> The act of Aug. 13, 1894 (28 Stat. 279), as amended by the act of Mar. 23, 1910 (36 
Stat. 241), constitutes the statutory authority for the acceptance of corporate surety 
on bonds. These acts are supplemented by Army Regulations, pars. 581-589, A. R., 
1910, and by G. O. No. 17, War Department, Jan. 27, 1911, this order being republished 
at intervals to bring it up to date as to the list of surety companies. 

^ The act of Aug. 13, 1894 (28 Stat. 279), now authorizes the acceptance of corporate 
surety "whenever any recognizance, stipulation, bond, or undertaking conditioned 
for the faithful performance of any duty, or for doing or refraining from doing anything 
in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the 
United States required or permitted to be given with one surety or with two or more 
sureties. t 

' See "Bonds" IV E to the same effect. The present requirement of the Army 
Regulations is found in par. 584, A. R., 1910. See Hanson v. Scituate, 115 Mass., 336. 



BONDS V E. 213 

pany, and has failed to give notice of the revocation of such authority, 
it will continue to be bound by the acts of the agent under his author- 
ity. C. 18002, Apr. 18, 1908. 

V E. The act of March 2, 1895 (28 Stat., 807), requiring official 
bonds to be examined at least once every two years for the purpose of • 
ascertaining the sufficiency of the sureties thereon, is sufficiently com- 
phed with as to bonds on which a corporation is surety, if the corpora- 
tion files periodically in the War Department the financial statement 
required oy paragraph 574, Army Regulations (585 of 1910). C. 
2616, Aug. 12, 1896. 

V F. Where upon the promotion of a disbursing officer from captain 
to major the superintendent of a surety company wrote to the War 
Department to the effect that the company was willing that the official 
bond pertaining to the old office of captain and upon which the com- 
pany was surety should extend to the new office of major, lield that 
the letter of the superintendent was not sufficient to extend the bond 
as proposed; that to extend the same to the new office of major would 
require an instrument under the corporate seal referring to the bond 
in such a way as to identify it, executed by officers of the company 
authorized to bind it in the matter of executing bonds. C. 1^221^., Apr. 
21, 1899. 

V G. Paragraph 575, Army Regulations (583 of 1910), as to bonds 
of disbursing officers, bidders, and contractors provided that : ' ' Before 
a corporation will be accepted as surety on the bond of a principal 
residing in a State or Territory other than the one in^hich it was 
incorporated it must comply with the requirements of section 2 of act 
of August 13, 1894, as to the appointment of an agent on whom proc- 
ess may be served, etc., and must file with the Secretary of War a 
copy of the power of attorney to such agent, authenticated under the 
seal of the tJnited States district court for the judicial district within 
which the agent resides, or the certificate of the Department of Jus- 
tice that the company has complied with the provisions of section 2 of 
said act of August 13, 1894." Held, that an appointment of an agent 
having once been made, it would not be necessaiy to file in the War 
Department a copy of an appointment of another agent subsequently 
appointed. The purpose oi the regulation requiring such evidence as 
to the original appointment of an agent is to enable the Department to 
know whether the company is authorized to do business in the judicial 
district, but after this requirement as to appointing an agent has once 
been comphed with, the act of August 13, 1894 (28 Stat., 279), pro- 
vides that in the event of th'e death, removal, or disabihty of the agent 
service may be made on the clerk of the court, and the authority of 
the company, to do business continues regardless of the appointment 
of a successor to the agent. C. 39^6, Oct. 12, 1905. 

The act of August 13, 1894 (28 Stat. 279), provides that no surety 
company shall do business beyond the Hmits of the State or Territory 
"under whose laws it was incorporated * * * until it shall, by a 
written power of attorney, appoint some person residing witliin the 
jurisdiction of the court for tne judicial district wherein such surety- 
ship is to be undertaken, who shall be a citizen of the State, Territory, 
or District of Columbia, wherein such court is held, as its agent upon 
whom may be served all lawful process against said compan^r." 
Held, this requires that an agent snail be appointed in the judicial 
district in which the principal on the bond resides or, if a corporation, 



214 BONDS V H. 

has its principal place of business.^ C. 501, Oct. 16, 1894; 3946, May 
6, 1898, and Nov. 10, 1898. The appointment of an agent in the District 
of Columbia only, wittt the intention of having all bonds signed by the 
principal wherever he may reside, and signed in the District of Colum- 
bia by the District of Columbia agent of the surety company, would 
not constitute a comphance with the above act. C. 11618, Dec. 18, 
1905. As there are no "judicial districts" in the Philippines within 
the meaning of the above act,^ recommended that surety companies 
doing business there be required to file with the division commander 
evidence of the appointment of some person residing there upon whom 
service may be had in case suit should be brought upon bonds or 
contracts of suretyship. C. 13893, Jan. 3, 1903. 

V H. The provision in section 4 of the act of August 13, 1894 (28 
Stat. 279), that where the Attorney General deems a surety company 
no longer sufficient security he "may require that additional security 
be given" is prospective only and does not authorize the Government 
to require a new bond for work already done as a condition of being 
allowed to complete the work. C. 23265, Feb. 16, 1909. 

V I. The act of August 13, 1894 (28 Stat. 279), relating to the accept- 
ance of corporate surety does not require a compliance with any laws 
or regulations which a State may impose to qualify a foreign surety 
company to do business within tne State with the officers or citizens 
thereof. Under the act referred to a bond of the surety company to 
the United States would be valid even though it had not complied 
with such la^s or regulations of the State.^ 0. 3604, Oct. 22, 1897; 
29275, Dec. 11,1911. 

V J. The act of August 13, 1894 (28 Stat. 279), relating to the 
acceptance of corporate surety does not apply to a contract made with 
a foreign contractor, the contract to be made and performed in the 
foreign country. In such a case a foreign surety company could be 
accepted as surety although it had not qualified as required by that 
act. C. 19164, Feb. 9, 1906. Nor does the act apply to a contract 
made and to be performed in the PhUippine Islands,* but that under 

» See Par. 583, A. R., 1910, as amended by G. O. No. 60, War Department, May 8, 
1911. 

_2 See 27 Op. Atty. Gen., 136, holding that the Panama Canal Zone was not a "judi- 
cial district" within the meaning of the act. 

* See, however, 28 Op. Atty. Gen., 34, to the effect that the Treasury Department 
should not accept the bond of a surety company in a State where the company is for- 
bidden by the laws of the State to do business, notwithstanding the company may have 
complied with the provisions of section 2 of the act of Aug. 13, 1894. Also, 28 Op. 
Atty. Gen., 127, to the effect that bonds of siu-ety companies executed in States m 
which they are not licensed, for principals residing in those States, or for contracts to 
be performed therein, are valid and enforceable against such companies, no matter 
how flagrant their violations of the law of the State may have been as regards failure 
to qualify to do business in the State; and that the execution of a bond by a surety 
company at its home office, or outside of the boundaries of a State wherein it is not 
licensed, for a principal residing in such State or for a contract to be performed there, 
would not be the doing of business by the surety within the State. 

* In 27 Op. Atty. Gen., 136, the opinion was given that the Panama Canal Zone was 
not a ''judicial district" within the meaning of the act of Aug, 13, 1894. See also 
27 Op. Atty. Gen., 208, that under the same act surety companies may appoint process 
agents in Porto Rico but not in the Philippines. See also 27 Op. Atty. Gen., 208, that: 
"A surety company may be accepted as surety on the official bond of an officer of the 
Government who is to discharge his duties in the Panama Canal Zone, provided the 
surety company has appointed process agents in the judicial district in which the prin- 
cipal in the bond resided at the time it was made or guaranteed, and in the judicial 
district in which the office is located to which it is returnable, and provided the com- 
pany has also complied with all other legal requirements." 



BONDS BOUNDABY. 2l5 

his general authority the Secretary of War may legally authorize the 
acceptance of any corporation doing business in the islands as sole 
surety upon any bond for the performance of a contract, provided the 
corporation has legal authority to act as a surety. So held that an 
incorporated bank might act as surety. C. 13893, May 1, 1909, July 
23, 1909. 

V K. Where the regulations (par. 585—2, A. R. 1910) of the War 
Department provided that no surety company will be accepted as 
surety which shall execute bonds in excess of 10 per cent of its paid- 
up capital and surplus "unless such company shall be secured as to 
such excess to the satisfaction of the head of the department by insur- 
ance or by deposit with such company in pledge or conveyance to it 
in trust for its security or indemnity, of property eq^ual m value to 
such excess," and further provided for a report showing the amount 
and character of such securities as to all bonds in excess of the 10 
per cent limit. Held that collateral securities or counter indem- 
nity received from persons secured, may be regarded as a deposit 
with the company in pledge, within the meaning of the regulations, 
and if sufficient as to both character and amount credit may be 
taken in the report. 0. 11618, June 8, 1907. 

V L. The act of March 23, 1910 (36 Stat. 241), amending the act 
of August 13, 1894 (28 Stat. 279), provides that the Secretary of the 
Treasury may institute inquiry into the solvency of an incorporated 
surety and "may require that additional surety be given at any 
time by any principal when he deems such company no longer suffi- 
cient surety." H'eld that the statute does not in terms vest the Sec- 
retary of the Treasury with authority to determine the amount or 
character of the additional surety that is to be exacted, and that in 
the absence of express language to that effect the law should not be 
construed as giving the Secretary of the Treasury such a control 
over the administration of another department, and that therefore 
it rests with the Secretary of War to determine the amount and char- 
acter of the additional surety in bonds under the War Department. 
C. 27826, Feb. 9, 1911, and Mar. 21, 1911. Held also that the above 
acts do not authorize the Secretary of the Treasury to determine the 
character of the instrument by which a surety shall be bound, nor 
the amount for which each surety may be accepted in one instru- 
ment. C. 29037, Nov. 18, 1911. 

CROSS BEFERENCE. 

See Contracts XX C to XXI. 
0/ officer See Army I B la(l); 2 b (1) (a). 

BONUS. 

Reenlistment See Pay and Allowances I C 5 c. 

BOUNDARY. 

International, not to be crossed by armed See Army II K 1 d; f (1); (2). 
troops. 

Street as See Public Property II C. 

Tidewaters See Public Property III G to H. 

Water as See Public Property II D to E. 



216 BOXER UPRISING BUREAU CHIEF. 

BOXER UPRISING. 

Beginning of. See War I B 4. 

Claims arising during See Claims VII B 6. 

Desertion during See Articles of War CIII F 2 a. 

Termination of. See War I F 4. 

BREACH OF PEACE. 

By soldier See Articles op War LXII E. 

BREAD. 

Baking at joint encampment '. See Militia VI B 2 j. 

BREVET RANK. 

See Rank IV to V. 
BRIBE. 

Disposition of money tendered See Public Monet I E. 

BRIDGES. 

Over navigable waters See Navigable waters III to Y. 

BRIGADE POST. 

Summary court at See Discipline XVI E 7. 

BROWNSVILLE COURT OF INQUIRY. 

Retired officers as members See Retirement I K 2 e. 

BUILDINGS. 

Occupation of, during war ; See War I C 6 b (1) (a). 

On leased land See Public property VII A 2. 

Post exchange See Government agencies II G to H. 

Title to See Public property II E to F. 

BURDEN OF PROOF. 

As to loyalty of Filipinos See Claims VII A. 

Before court See Discipline XI A 4 to 5. 

BUREAU CHIEF. 

Deposition of , See Articles of War XCI A 1. 

Reappointment See Rank I B 1 d to e. 



CADET CAPITAL SENTENCE. 217 

CADET. 

See Army I D to E. 

Appointments as.: See Office III A 4 a. 

Residence See Residence. 

Privilege as witness See Discipline X H 1 a. 

Dismissal See Discharge XVIII A. 

Summary dismissal See Office IV E 2 g to F. 

Dismissal commuted to suspension See Pay and allowances III F 1. 

Discharge without honor See Discharge III F 2. 

Graduation leave See Absence I B 1 k. 

Jurisdiction over after graduation See Discipline VIII I 2. 

Service as, counts for retirement See Retirement I A 1 b; 2 a. 

Service otherwise than as See Retirement I C 1 a. 

CAIIING FORTH. 

See Militia I to II. 

See Volunteer Army II B 2 to 3. 

CAMPAIGN BADGES. 

See Insignia op merit III B to C. 
Issue to militia See Militia XIII B. 

CAMP FOLLOWERS. 

See Articles of War LXIII A to E. 

CAMP RETAINERS. 

See Articles op War LXIII A to E. 

CANADA. 

Absconding to See Desertion XX A. 

Extradition from See Extradition I. 

Official of, can receive reward for apprehen- See Desertion V B 14 c. 
sion of deserter. 

Shipment of troops through See Army I G 3 b (2) (a) [2] [a]; [6]. 

Contracts LX. 

CANAL. 

Appropriation for See Appropriations XXXVIII. 

Rules for navigation See Navigable waters VIII. 

CANCELLATION. 

Of contract See Contract VII J 1. 

CAPITAL CRIME. 

Charge of, under 59th Article of War See Articles op War LIX 1 1. 

Inferior court See Articles op War LXXXIII B 1. 

Violation of parole See War I C 11 b. 

CAPITAL SENTENCE. 

Based on several offenses See Articles of War XCVI A; B. 

Commutation of. See Articles of War CXII Ala (1). 

In time of peace, by general court-martial. . .See Articles of War XXI E 1. 
Record of. See Discipline XIII M. 



218 CASH CHALLENGE TO FIGHT. 

CASH. 

As guaranty See Contracts XI L. 

Seizing in bank See War I C 6 e (1). 

CEMETERIES. 

See Public property IV to V. 

Fencing of. See Appropriations LVII. 

Maintenance of. See Appropriations LXVII. 

CERTIFICATE. 

Destruction of property to prevent contagion .See Pay and allowances II A 3 a (4) (d) 

Discharge See Discharge XIII E 1 to 3; XIV A to 

D5. 

Discharged soldier's right to See Discharge II B 5. 

Evidential value of. See Militia XVI H. 

Health See Tax III L. 

Of discharge not required at muster out See Volunteer Army IV B 5. 

Discharge XVI A 1. 

Officer refuses to sign See Articles of War XXI C 1 a. 

With application for pardon of deserter See Desertion XV E 1. 

CERTIFICATE OF DISABILITY. 

See Discharge V A to D; XIII D 4 a. 

Authority to give See Discharge XX D 1 ; 2. 

Effect of, on retirement of enlisted men See Retirement II A 1 a. 

CERTIFICATE OF MERIT. 

See Insignia op merit II to III. 
Awarding during fraudulent enlistment. . . .See Enlistment I A 9 n. 

CERTIFIED CHECK. 

See Contracts XX C 3. 
Accompanying bid See Contracts XI to XII. 

CESSION OF JURISDICTION. 

See Public property V E to G. 
Discipline VIII D 4. 
Command V A 3 f . 

Over reservation See Public property III A 1. 

Tax III A to E. 

CHALLENGE OF MEMBER. 

Failure to exercise .* See Discipline XV F 7. 

Judge advocate See Discipline IV N. 

Member of general court-martial See Articles of War LXXXVIII A to D. 

Discipline XIJI C 2; 2 a. 

Military commission See War I C 8 a (3) (d) [1]. 

Overruled improperly See Discipline XIV E 9 a (15). 

Right to See Discipline XV 13 10. 

CHALLENGE TO FIGHT. 

Elements of. See Articles opi War XXVI A. 

Inciting to., „ See Articles of War LXII D. 



CHAPLAIN CHIEF Of ORDNANCE. 219 

CHAPLAIN. 

Porto Rican Regiment See Army I G 2 a (1) (h). 

CHARACTER. 

Deserter See Discharge II B 2 a. 

Enlistment I D 3 c (13); (14). 

Discharge by purchase See Discharge VI D 5. 

Evidence of. See Discipline X A 2 ; XI A 11 ; 11 a. 

Fraudulent enlistment See Enlistment I A 9 1 . 

Reenlistment See Enlistment I D 3 to II. 

Resignation of officer See Office I V D 6. 

Soldier See Discharge V A to B; XL A to C 1. 

Summary discharge of officer See Office IV E 2 e. 

Volunteer, how determined See Volunteer Army IV H 2. 

CHARGES. 

See Discipline II to III. 

Disposition of. See Official records I B 1. 

List of witnesses See Discipline X A 4. 

Military See Discipline II A to K ; I B 3. 

Military commission See War I C 8 a (3) (d) [1]; [5]. 

Service of, on accused See Articles of War LXXI A to D . 

Retired soldier See Retirement II B 3 a; b. 

Retiring board can not try See Retirement I B 1 c (3). 

CHECK. 

Forged checks See Public money II B 2. 

Loss of. See Public money II B 3. 

" No funds" See Articles op War LXI B 10. 

Payable to whom See Public money III. 

Sending through the mail See Public money II B G. 

CHIEF FORESTER. 

Can not v^e Army to police forest reserves. . .See Army II H. 

CHIEF MUSICIAN. 
Status of. See Army I E 4. 

CHIEF OF BITREAXT. 

Deposition of. See Articles of War XCI A 1. 

Reappointment See Rank I B 1 d to e. 

CHIEF OF COAST ARTILLERY. 

Not part of War Department See Civilian employees VIII A„ 

See Army I G 2 b (1). 

CHIEF OF ENGINEERS. 

Authority to grant leaves See Absence I B I c (3). 

Custodian of public buildings See Public property I E. 

CHIEF OF ORDNANCE. 

Authority of See Army I G 3 b (4) (a). 

Demands return of arms from colleges See Military instruction II B 2 e (1). 



220 CHIEF OF PHILIPPINE C(XN^STABULABY CIVIL AU'RHORITIES. 

CHIEF OF PHILIPPINE CONST ABUIAEY. 

Civil office nnth military rank attached See Command I C. 

Eligibility to command. ..' See Command V B 5. 

Territories IV B 2 a. 

Army II G 1 a; 2 a (1). 
Heat and light See Pay and allowances II A 1 c (4). 

CHIEF OF STAFF. 

0/ Department See Army I G 3 a (1) (a). 

CHILD. 
As witness See Discipline X B 3. 

CHINAMAN. 

See Officer's servant I. 

CHOSE IN ACTION. 

See Public property I D. 
CHUECH. 
Attendance See Articles of War LII A. 

CITIZEN. 

See Civilian. 

Filipino is not citizen of United States See Desertion XIV B 1„ 

Should cooperate to suppress violence See War I B 5 a (1). 

CITIZENSHIP. 

Eligibility for enlistment is not a right of... See Enlistment ID 3 e (6). 

How acquired See Alien II; III; VI D 4. 

Enlistment I B 1 b (2); C 1 c (1) g. 

How acquired in Alaska See Territories III A. 

Pardon, rights of, restored by See Pardon V. 

CIVIL AUTHORITIES. 

I. CIVIL COURTS. 

A. When Government is a Party. 

1. May order witnesses at public cost. 

B. Government not a Party. 

1. OflBcers or enlisted men may be allowed to attend as witnesses. 

2. Look to officers of civil court for fees. 

3. General prisoner desired as witness. 

a. Transferred under guard to station nearest court. 

n. COMPTROLLER OF THE TREASURY. 

A. View Does not Conclude the War Department. 

I A 1. Wliere the Government is a party to a civil action,^ it is 
proper for an officer or soldier to be ordered to appear as a witness 

* Civil courts take judicial notice of executive orders of the President of the United 
States, reserving lands within the jurisdiction for military purposes. (See U. S. v. 
Kauchi Matohara, U. S. District Court for the Territory of Hawaii, Oct., 1911 term. 
Cases, 773 and 784.) i 



J 



CIVIL AUTHORITIES I B 1. 221 

at public cost, as the Government is a party to the action, and each 
party must pay the traveling expenses of its witnesses.^ C. 17860, 
Nov. 19, 1909. 

I B 1. On application made to have certain officers and military 
employees ordered to appear as witnesses before a civil court, held 
that a military order could not properly issue for that purpose, but 
that it would be proper for the desired witness to be allowed to attend 
the court.2 C. 23824, Apr. 12, 1909. 

I B 2. Neither the appropriation "for the compensation of wit- 
nesses" attending military courts, nor the appropriation for the con- 
tingent expenses of the Army, is applicable to the payment of 
allowances, as witnesses before civil courts, of officers or soldiers of 
the Army or of civil employees of the military establishment. For 
such allowances they must look to the laws and appropriations 
fixing and authorizing the payment of witness fees in these courts.^ 
P. 55, 471, and 56, 97, Oct., 1892; C. 5335, Nov., 1898; 75^0, Jan., 
1900; 112U, Sept. 14, 1901; I44I8, Apr. 2, 1903; 16068, Mdr. 24, 
1904; 17860, Apr. 19, 1905; 23824 ^pr. 12, 1909. 

I B 3 a. The evidence of a general prisoner confined at Fort Jay, 
N. Y., was desired in the trial of a case before a civil court in the 
State of Massachusetts. Held that upon request b}^ the proper 
court such prisoner would be transferred under guard to Boston 
Harbor for the purpose of being brought before the court as a witness. 
C. 19427, Sept. 23, 1907. 

II A. Held that the views of the Comptroller of the Treasury as 
to matters of Army administration are not conclusive on the War 
Department except so far as they are applied to matters within his 
jurisdiction. Thus, on a question of organization he may hold one 
way for the purpose of pay and the War Department may hold dif- 
ferently for other purposes.* C. 8196, May 2, 1900. 

CROSS REFERENCE. 

Apprehension of deserter See Desertion V A to G. 

Commanding general may remove See War I C 8 a (2) (6). 

Contraband turned over to See Army II K 1 e to f , 

Discharge of soldier by United States Com- See Discharge XVI D 1. 

missioner. 
Enlisted man in hands of. See Absence II B 4 a ; a (1) ; 9 a. 

Command V A 2 c. 

Enlistment I B 2 b. 

Pay and allowances II A 3 a (2). 

Employment of Army to aid See Army II to III. 

Forcible entry of dwelling See Desertion III B . 

Neutrality, information of violation of. See Army II K I c. 

* The United States District Court for District of Hawaii has jurisdiction of an assault 
committed upon a military reservation in the Territory of Hawaii (Id.). 

2 See Par 75, A. R., 1910 ed. 

^ If, however, it is absolutely necessary to furnish them transportation in kind to 
enable them to appear, as witnesses for the Government, before a civil court of the 
United States, an account of such expenditure, together with the evidence that they 
were properly subpoenaed and did attend the court, will be forwarded to the War 
Department for presentation to the Department of Justice. Officers providing such 
transportation will notify the court, or the marshal thereof, that it was furnished to 
enable the witnesses to perform the requisite journeys in obedience to the summons. 
A. R., 72, edition of 1895 (par. 75, 1910 ed.). 

* Fiuding of Comptroller on claims against the United States is not conclusive on 
the courts. See U. S. v. Gillmore (189 Fed. Rep., 761). 



222 CIVIL BANDS CIVILIAN. 

Offenders turned over to . . See Command V A 3 c (1). 

Army I A 6. 

Articles op War LIX A to L 2. 

Officer in hands of... - . - -See Absence II A 1. 

Prisoners kept for See Command V A 8. 

Subpoena by.. .See ArmyI G;3b (2) (a) [31[c]. 

Public property III A 1; V F 1 b 
(3) (h). 
War status can not be terminated by decision See War I F 1 . 
ofdvil court. 

CIVIL BANDS. 

See Army bands. 
May employ Army musicians See Army bands I C 3. 

CIVIL COURTS. 

Appeal not taken/rom general court-martial. See Discipline XV I 1. 
Commanding general appoints in time of See War I C 8 a (2) (a). 
war.' 

Concurrent Jurisdiction of See Article op War LVIII A; CII C. 

Condemnation of land See Public property II A 4 b. 

Discharge by See Discharge VII A; B. 

Discharge on account of purixshment by See Pay and allowances III C 2 c (2). 

Jurisdiction over officer or soldier See Article op War CII A to I. 

Jurisdiction over retired officer See Retirement I G 2 d. 

Jurisdiction under military government. . . .See War I C 8 a (3) (6) to {d). 

Pay not earned while in hands of See Pay and allowances I C 3. 

President' s action in dropping officer, asde- See Desertion XX D. 
serter can not be reviewed. 

Prisoners of war, trial of See War I C 11 c (2); (3); 12 a. 

Prisoner turned over to See Army I A 6. 

Records fumiahed to See Army I B a c (1). 

Official records I A 2 a. 
Right of accused to be confronted with wit- See Article op War XCI H. 
nesses. 

Soldiers tried by See Article of War XXI E 1. 

State courts can not enjoin United States See Public money II C 6. 

courts. 
State courts can not enjoin Federal agent. . ..See Contracts LVIII. 

Subpcena of. See Army I E 5. 

Territorial jurisdiction See Discipline VIII D 4. 

War status can not be terminated by decision . See War I f 1 . 

Warrant of See Command VA31;VB2b;VB2c. 

Witnesses before See Civil authorities IA;IA1;IB1; 

IB3a. - 

CIVIL DISORDER. 

See Army II to III. 

CIVILIAN. 

Abuse of by Army See Article op War LIV A to H 2. 

Abu^e of by militia ^ - . See Article op War LIV F 2; LIX A to 

•^ L2. 

Appointment to military office See Office III A 1 c to e. 

Armed and equipped, but not soldiers See Volunteer Army II F 1 b to c. 

Arrest of by military See Command VA3c;VA3c (1); V A 3 d 

Arrest of by mistake See Claims XII E. 

Arrest of deserter by See Desertion III F. 

Camp follower See Article of War LXIII A to E. 

Can not convene court-martial See Discipline KV H 1. 

Can not keep captured property See War I C 6 c (3) (a). 

Charges initiated by See Discipline II B. 



CIVILIAN employees: synopsis. 223 

Company tailor. See Article of War XXI B 1. 

Contract surgeon See Army I G 3 d (4) (c). 

Debts against officers See Army I A 2 a (2). 

Detention of .' See Discipline I V B 4 a. 

Enlistment changes status See Enlistment I A. 

Exclusion from reservation See Command V A 3 a; 3 b. 

Discipline XVII A 4 g (4). 

Fishing on military reservation See Command V A 3 f . 

Injured on transport See Command V B 2 b. 

Inmates of Soldiers' Home See Soldiers' Home I A. 

Judge Advocate See Discipline III C 2 b. 

Jurisdiction over See Discipline VIII G 2 a to b; XIV E 2. 

Medical attendance on See Army I G 3 d (1). 

Messenger to cross international boundary . . .See Army II K 1 f (1). 

Military instruction of See Military instruction II. 

Not surrendered under Fifty-ninth article of See Article of War LIX H . 
war. 

Offenses against See Article of War LXII C 5 a. 

Removal from reservations See Public property III H to I. 

Command V A 3 d (2). 

Reward for apprehension of deserter See Desertion V A to F 19. 

Squatters on military reservation See Public property II B 3 a. 

Subpoena served by See Discipline X F 1; 2. 

Trial of by military See Article of War XL A. 

Desertion V F 4 a; 5; IX O. 

CIVILIAN EMPLOYEES.^ 
I. LEAVES. 

A. Who are Entitled to. 

1. Expert accountant, Inspector General's Department Page 226 

2. Employees of navy yards, gun factories, naval stations, arsenals, 

armories, ordnance and powder depots, but not employees of 
inspectors of ordnance on duty at works not belonging to the 
United States. 

B. Nature of. 

1 . Thirty days ' annual leave and 30 days ' sick leave may be granted . 

2. More than a total of 60 days' leave, with pay, may not be granted 

even though the cause of absence be sickness Page 221 

3. Within the limit of 60 days, leave may be grafted because the pres- 

ence of clerk would jeopardize health of fellow clerks. 

4. In case of absence without leave surgeon's certificate does not 

operate to restore pay, but may be a guide to the Secretary of 
War in acting on the case. 

C. Certain Rulings in Regard to. 

1. The Secretary of War may not detail a clerk of the War Department 

as military instructor at a school without deduction of time or pay. 

2. No authority for granting indefinite leave without pay to clerk to 

cover absence as oflacer of volunteers Page 228 

3. Time lost by employees of Ordnance Department due to lay-offs 

by proper authority, does not interrupt continuity of service for 
leave. 

4. It is a proper expenditure for the quartermaster's department to 

use its funds to procure the services of temporary employees to 
replace the employees at large who are absent on leave without 
pay. 

* Prepared by Lieut. Col. John Biddle Porter, judge advocate, assistant to Judge 
A-dvocate General. 



224 CIVILIAN employees: synopsis. 

I. LEAVES— Continued. 
D. Holidays. 

1. Per diem employees may enjoy holidays established by States, but 

not receive pay if they do. 

2. Per diem employees may receive pay for the holidays established 

by law unless employment ended the day before or began the 
day after such holiday. 

3. Pay allowed 'per diem employees for holidays specified in joint reso- 

lution of 1885, except July 4, only when holiday does not fall on 
Sunday. Pay allowed for July 4 on day celebrated as such. 

4. Per diem employees suspended and not at work during period which 

includes holiday not entitled to pay for same. 

5. Employees who work on holidays not entitled to double pay. 

6. The operation of the joint resolution of 1887 granting pay to per 

diem employees is not restricted to city of Washington nor to per- 
manent per diem employees. 

7. Days proclaimed by President for mourning: 

a. Per diem employees at arsenal not entitled to pay . . . Page 229 

b. Employees employed and paid by the day not entitled to pay, 

but employees for definite periods longer than day or indefi- 
nite periods entitled to pay, although their compensation 
be measured by the day. 
n. STOPPAGE OF PAY. 

A. Pay of Civil Employee can not be Stopped to Liquidate Private 

Indebtedness. 

B. Pay of Employee may be Stopped by Commanding Officer of Arse- 

nal TO Amount Necessary to Make Good Damage to Government 
Property Due to Neglect of Employee. 

C. Hospital Charges Due United States from Civil Employees may 

BE Collected from Sums Found Due Them for Services to United 
States. 

D. Clerk Discharged from One Office, Reinstated and Assigned to 

Another Office may Have Pay Stopped to Meet Excess of Leave 
Under First Appointment. 

m. JURY DUTY. 

A. Officers of the Army and Civil Employees of Military Establish- 
ment Should not be Called upon for Jury Duty, Road Work, etc. 

IV. DUTY AS WITNESS. 

A. Employees Covered by Act op 1898 not Entitled to Leave with 

Pay While Absent as Witnesses Except Where Summoned as 
Witness for United States Page 230 

B. Employees not Covered by Act of 1898 Entitled to Leave with 

Pay While Absent as Witnesses. 
V. DEFINITIONS. 

A. Crew of Transport are Civilian Employees. 

B. Superintendents of National Cemeteries are Civil Officers op 

United States and not Part of Military Establishment. 

C. Master Mechanic at Arsenal does not Hold Federal Office, but 

Employment Simply. 
VI. HOLDING OTHER OFFICE. 

A. Civil Service Clerk May not Accept Appointment as Vice Consul 

of Foreign Power, Though no Salary Attach. 

B. Clerk May not Accept Office as Alderman or as City Attorney. 

C. Quartermaster Employees not Prohibited by Law or Regulations 

from Accepting Office as Member of City Council Page 231 



CIVILIAN employees: synopsis. 225 

Vn. NOTARY PUBLIC. 

A. A Clerk Who is Also a Notary Public not Precluded from Receiv- 
ing Fees as Notary in the Execution of Contracts with Govern- 
ment. 

Vm. DETAILS. 

A. Enlisted Man May not be Detailed for Clerical Duty in Quarter- 

master's Department, but May be so Detailed in Office of 
Chief of Artillery. 

B. Clerk not Eligible for Appointment as Post Noncommissioned 

Staff Officer. 

C. Clerks Provided for Headquarters of Divisions, Departments, 

and the Chief of Staff May be Assigned to Duty with Artillery 
Board, Fort Monroe. Restriction is to Details to Duty in 
Bureaus of War Department. 
rx. TRAVEL. 

A. No Precedent for Allowing Traveling and Other Expenses op 

Personal Clerk of Officer Ordered Before Court of Inquiry. 

B. Transportation to Five Postal Clerks, with Sleeping-Car Accom- 

modation, Requested by Quartermaster's Department, en Route 
' ' FOR Duty with Troops in the Field, " Payable from Army Trans- 
portation. 
X. ADDITIONAL COMPENSATION. 

A. Discussion. Clerk in War Department may Receive Additional 

Compensation for Work Under Appropriation for Gettysburg 
National Park. 

B. Under Appropriation Act of 1894 Clerks and Messengers "Em- 

ployed AND Apportioned to the Several Headquarters and Sta- 
tions BY the Secretary of War" may not be Discharged or 
Their Salaries Increased or Reduced by a Department Com- 
mander , Page 232 

C. Clerk of Bureau of War Department may not Have Additional 

Compensation for Services Rendered as Acting Chief Clerk. 
XL VACATION OF POSITIONS. 

A. Resignation. 

1. Resignation of an employee may be accepted to take effect upon 

the last day lie worked, although acceptance be subsequent to 
that date. 

2. WTiere civilian accepts employment as clerk, with no understanding 

as to tenure of office, he may resign when he sees fit. 

3. Rule as to acceptance of resignation of clerk same as that of officers, 

where notice of acceptance has been communicated . . Page 233 

4. Resignation of civil-service employee under investigation for 

political activity should not be accepted but the employee 
dismissed. 

B. Discharges. 

1. The ultimate discharge of employee as of the date of his suspension 

is lawful. 

2. Clerk discharged for cause may not be allowed to resign. 

3. A clerk having been discharged, the discharge is beyond recall, 

even when there was mistake on part of officer recommending 
or issuing discharge. 
93673°— 17 15 



226 CIVILIAN EMPLOYEES I A 1. 

Xn. INJURIES. 

A. Discussion. 

B. Compensation. 

1. Under act of May 30, 1908, compensation may include commuta- 

tion of rations, if subsistence was furnished the employee at 
time of accident. 

2. Relief could not be granted under act of May 30, 1908, to carpenter 

injured while working on bridge in connection with water supply 

at West Point Page 234 

Xm. MILITARY SERVICE. 

A. Clerks in Quartermaster's Department who, in 1862, were Em- 

ployed AS an Armed Force were not in the Military Service, 
BUT Remained Civilians. 

B. The Term "Service in War" in Uniform Regulations Relates to 

Service as Officer or Enlisted Man and does not Attach to 
Status of Civil Employee. 
XIV. DESERTION. 

A. A Civil Employee does not become Liable as a Deserter by Aban- 
doning HIS Employment. 
XV. SEAMAN. 

A. If a Seaman is Discharged by Voluntary Consent in a Foreign 
Port he is Entitled to Wages up to Time op Discharge, but 
Unless his Time has Expired he Should not be Discharged in 
Foreign Port to Become a Public Charge. 
XVI. MISCELLANEOUS. 

A. Clerk of War Department who was Treasurer of a Society hav- 

ing FOR ITS Object the Making of Personal Loans to Employees 
at 2 per cent per Month Violated the Executive Order of April 
13, 1911. 

B. Civil Service Rules as they Stand Permit the Appointment with- 

out Examination of a Second Driver for the Secretary op 
War. 

C. Where the Commissioner for Marking Graves of Confederate 

Dead died while in Office the Chief Clerk of the War Depart- 
ment should Certify such Vouchers as Remain to be Accom- 
plished Page 235 

I A 1 . Although the expert accountant is not a part of the clerical 
force of the War Department, he is a civil officer of the department 
who, from the nature of his qualifications, is employed in the office 
of the inspector general or in the military establishment at large at 
the discretion of the proper military superior. To such a case the 
terms of the departmental regulation of August 5, 1899 (having 
relation to leaves), seem to have full application. C. 26298, Mar. 3, 
1910; 14290, Aug. 23, 1911. 

I A 2. Held that in the act of February 1, 1901 (31 Stat. 746), 
which grants 15 days' leave in each year to employees of the navy 
yards, gun factories, naval stations, and arsenals, the word "arse- 
nals" is broad enough to include armories and ordnance and powder 
depots, but does not embrace employees of inspectors of ordnance on 
duty at works not belonging to the United States. C. 10039, Mar. 20, 
1901; 13440, Oct. 29, 1902. 

I Bl. Section7of theactofMarch 15, 1898 (30 Stat., 316), provides 
that the head of any department may grant 3C^ days' leave with pay 
in any one year to each clerk or employee, and also that, in excep- 



CIVrLIAN- EMPLOYEES I B 2. 227 

tional and meritorious cases, where a clerk or employee is personally 
ill, and where to limit the annual leave to 30 days would work peculiar 
hardship, the leave may be extended with pay not exceeding 30 days. 
In a later act (July 7, 1898, 30 Stat., 653) it was provided that noth- 
ing contained in the said section of the act of March 15 shall be con- 
strued to prevent the head of the department from granting 30 days' 
annual leave with pay to a clerk or employee, notwithstanding the 
clerk or employee may have had not exceeding 30 days' leave with 
pay on account of sickness. Held, that construing these two acts to- 
gether, they reestablish the old and simple law and custom of the 
department to the effect that the Secretary of War may (through the 
heads of bureaus or personally) grant to each clerk and employee dur- 
ing each year 30 days' leave with pay (called in the statutes "annual 
leave"), and in addition thereto, during the same period, a leave with 
pay not to exceed 30 days, if during such time the clerk or employee 
IS compelled by personal illness to be absent.^ Sixty days' leave with 

Eay is all that may be granted in any one year. Thus where a clerk 
as been absent sick 39 days and had drawn pay therefor, held that he 
could be allowed 21 days' leave with pay during the remainder of the 
year, but no more. C. 4694, July 29, 1S98; 16250, May 2, 1904. 

I B 2. Held, that the head of an executive department can not 
legally grant more than 60 days' leave of absence with pay to any 
employee in any one calendar year, and this regardless of whether the 
employee has been absent beyond the legal allowance of leave because 
of sickness. C. 13425, Oct. 10, 1902. 

I B 3. Held, that under section 7 of the act of March 15, 1898 (30 
Stat., 316), which amends section 5 of the act of March 3, 1893 
(27 Stat., 715), a clerk who was absent because his presence "would 
jeopardize the health of liis fellow clerks" might receive pay during 
such absence, provided that his entire absence during the year should 
not exceed the period of 60 days. 

I B 4. Under the provision of section 4 of the act of March 3, 
1883 (22 Stat., 563), relating to absences of clerks of the departments, 
such a clerk, when absent without leave, whether sick or well, for- 
feited his pay for the period of absence. Where a clerk of the War 
Department, who had been absent without leave, produced, to 
account for liis absence, a surgeon's certificate, lield that such certifi- 
cate did not per se operate to restore pay, but that it was in the dis- 
cretion of the Secretary of War to accept or not such certificate and 
ratify the absence as authorized; that unless he should do so the pay 
would remain forfeited. P. 57, 231, Jan., 1893.^ 

I C 1. Where an application was made for the detail of a clerk on 
duty in the War Department to instruct the battalion of cadets of 
the Wasliington High School six hours each week, without deduction 
of time or pay being made against him, held that the Secretary of 
War, in the absence of a statute authorizing such a detail, was witnout 
power to make it. P. 4-'^, 495, Mar., 1891.'^ 

1 See circulars, War Department, dated Dec. 2 and 3, 1898. 22 Op. Atty. Gen., 255. 

^ Leaves to clerks in the executive departments are governed by sec. 7, act of Mar. 
15, 1898 (30 Stat. 316), and sec. 4, act of Feb. 24, 1899 (30 Stat. 890). See also War 
Dept. circulars of Aug. 5, 1899, and May 25, 1900. 

3 \Vhile the foregoing decision is based on sec. 4 of the act of Mar. 3, 1883 (22 Stat. 
563), it is equally apposite to the law as it stands to-day. (Sec. 7, act of Mar. 15, 1898, 
30 Stat. 316.) 



228 CIVILIAN EMPLOYEES I C 2. 

I C 2. Held that there was no author! t}?^ of law for granting to a 
clerk in the Record and Pension Office an indefinite leave of absence 
without pay, to cover his absence as an officer of United States Vol- 
unteers. (J. 4129, May 16, 1898. 

I C 3. Held that time lost by employees of arsenals, gun factories, 
etc., of the Ordnance Department due to lay-offs by the proper officer 
of the Department, does not interrupt the continuity of service for 
leave of absence within the operation of the act of February 1, 1901 
(31 Stat., 746). C. 11608, July 1, 1908, Nov. 18, 1910. 

I C 4. Where employees of the Quartermaster's Department at 
large are absent on annual leave with pay, held, that it is a proper 
expenditure of funds of that department to procure the services of 
temporary employees to replace them, C. 20069, July 17, 1900. 

ID 1. By the joint resolution of Congress of January 6, 1885, it 
was provided that the ''per diem employees" of the United States 
should be allowed certain days as holidays, namely, January 1, Feb- 
ruary 22, July 4, and December 25, together with ''such days as 
may be designated by the President as days for national thanksgiv- 
ing," and should receive the same pay for those days as for other 
days. Held, that while such employees might be allowed by the 
the Secretary of War to enjoy the Saturday half holiday established 
at New Orleans by a statute of Louisiana, they could not, if taking 
the holiday, legally be paid for such time. P\ 62, 31, Oct. 12, 1893. 

I D 2. Where per diem employees have been present for duty 
either before or after a holiday, but not present both before and after, 
being absent a day or more either prior or subsequent thereto, they 
are entitled to be paid for such holiday, unless their employment was 
terminated the day before or began the day following it; in which 
cases they would not be employees of the United States at the time 
of the holiday. C. 5879, Feb. 17, 1899; 16558, July 8, 1904; 20358, 
Sept. 13, 1906; 23607, July 15, 1908; 14290, Aug. 23, 1911. 

I D 3. Pay shall be allowed per diem employees for the dates 
specified in the Joint resolution of January 6, 1885 (23 Stat., 516), 
VIZ, January 1, February 22, July 4, and December 25, other than 
July 4, only when those dates do not fall on Sunday. Pay shall be 
allowed to per diem employees under the joint resolution of February 
23, 1887 (24 Stat., 644), for the day celebrated as "Memorial" or 
"Decoration" Day and also for the day celebrated as the "Fourth of 
July." C. 17645, Mar. 10, 1905. 

ID 4. Per diem employees suspended and not at work during a 
period which includes a holiday are not entitled to pay for the holi- 
day. 0. 1668, Aug. 21, 1895. 

I D 5. Employees who work on a holiday can not be given double 
pay for such service in the absence of a statute expressly authorizing 
the same. C.4335, June 16, 1898; 15979, Feb. 25, 1904. 

I D 6. A joint resolution of Congress approved February 23, 1887 
(24 Stat. 644), provides " that all per diem employees of the Govern- 
ment on duty at Washington or elsewhere shall be allowed the day 
of each year which is celebrated as 'memorial' or 'Decoration Day,' 
and the Fourth of July of each year, as holiday and shall receive the 
same pay as onotherdays." A perdiem employee of the Government 
at West Point, N. Y., having been refused ^ay for the Fourth of 
July, submitted a claim therefor. Held, that under the joint resolu- 
tion quoted, the claim was a valid one, that the resolution was not 



CIVILIAN EMPLOYEES I D I a. 229 

1 

limited as to place to the city of Washington nor as to per diem 
employees or to permanent ones. P. 61, 125, Aug. 16, 1893. 

I D 7 a. On January 19, 1893, the President proclaimed that on 
the day (January 20) .of the funeral of ex-President Hayes, all public 
business in the departments should be suspended. This not being 
one of the days included as public holidays by the joint resolution 
of January 6, 1885, lield that the per diem employees at the Watervliet 
Arsenal were not entitled to be paid for that day. P. 57, 4^4) 
Feb., 1893. 

I D 7 b. Where the question was raised as to whether certain 
employees paid by the day, could be paid for two days on which 
public work was suspended, by a War Department order, in con- 
sequence of the death of a President of the United States, held, that 
employees who were employed and paid by the day, although they 
may have been thus employed for some time, would not be entitled 
to pay for the days in question on which they did no work; but that 
all the employees who were employed for definite periods longer than a 
day, or for indefinite periods, although their compensation be meas- 
ured by the dav, are entitled to pay for these davs, if they happened 
during such employment.^ 0. 11301, Oct. 31, '^ 1901. See also P. 
57, 424, Feb., 1893: 

II A. It is well established that the pay of a civilian employee 
can not be stopped to liquidate a private indebtedness to an enlisted 
man. C. 26835, July 21, 1910. 

II B. Held, that the commanding officer of an arsenal, as repre- 
senting the United States, has the power to withhold from the pay 
of an employee of the arsenal, the amount necessary to make good 
damage to Government property due to the neglect of the employee. 
C. 18064, ^ay H, 1905. 

II C. Held, that when hospital charges due to the United States 
from civilian employees have not been voluntarily paid, they may 
be collected from any sums subsequently found to be due to such 
employees on account of ser\dces rendered to the United States. 
C. 20613, Mar. 5, 1910. _ 

II D. Held, that a civil-service clerk who was discharged from 
one office and later reinstated and assigned to another office might 
after such reassignment have his pay stopped to make good certain 
days of absence in excess of 30 discovered to have been taken while 
serving under the first appointment. C. 821, Jan. 3, 1895. 

III A. On the question as to whether officers of the Army and 
civil employees of the military establishment should be called upon 
for jury duty, to work upon the roads of the State, Territory, or 
district in which they may be stationed, etc. Semhle to this office, 
in view of their required duty to the United States, that they should 
not, but held that the question was one for the courts to determine 
in each case.^ C. 8229, Sept. 2, 1902; 13513, Oct. 22, 1902, July 24, 

» VIII Comp. Dec, 219, id., 235. 

^ In Pundt V. Pendleton, 167 Fed. Rep. 1003, a case involving habeas corpus pro- 
ceedings in relation to a teamster in military employment at Fort Oglethorpe, who 
had been imprisoned by a State court for failure to comply with the State law requir- 
ing work upon the roads, the court said: "I believe Pundt is exempt from this road 
duty * * * because of the fact that he is a necessary instrumentality in that 
portion of the United States Army stationed at Fort Oglethorpe, and that he is Buch 
an important and necessary part of the military establishment as that the State and 
the Countv of Catoosa has no right to call on him to be absent from the fort when such 



230 CIVILTAN EMPLOYEES IV A. 

1905; 20390, Sept. 17, 1906, Aj^r. 25, 1908, Dec. 5, 1908, and Apr. 19, 
1910; 20327, Mar. U, 1910, Sept. 24, 1910, and Oct. 1, 1910. 

IV A. Wliere a clerk in the office of the Secretary of War was sum- 
moned as a witness to Alexandria, Va., necessit/iting his absence from 
duty for one day, held that his request that he be given leave with 
pay for this time without having the same charged against his amiual 
leave must be denied. The act of March 15, 1898 (30 Stat., 316), 
provides for 30 days' leave only in one year for clerks and employees 
of the executive departments and for an extension of this leave to 60 
days in the case of sickness and certain other contingencies. Had 
the clerk been required as a witness for the United States he would be 
considered to have been on duty and under pay, but this can not be 
held where he was absent in a j^roceeding in which the United States 
was not a party. C. 20390, Feb. 20, 1909. 

IV B. A civil employee not coming within the purview of the 
act of March 15, 1898 (30 Stat., 316), is entitled to his pay while 
absent in attendance as a witness upon a State court.* C. 17968, 
May 16, 1905. 

V A. Members of the crew of a transport are civilian employees and 
are amenable to the same laws as are merchant seamen. C. 28492, 
Sept. 12, 1911. 

V B. Superintendents of national cemeteries are civil officers of 
the United States in the sense that the several incidents of the office 
of superintendent are established by law. They form no part of the 
military establishment, however, and for that reason are not entitled 
to any of the allowances which are furnished to officers and enlisted 
men in conformity to law and regulations. C. 9393, Dec. 8, 1906. 

V C. Held that the position of master machinist at the Springfield 
Arsenal, conferred by tlie a])pointment of the commanding officer, was 
not properly a Federal office, but an employment simply, so that, upon 
the appointee being elected a member of the school committee and of 
the Board of Water Commissioners of Springfield, he could not be said 
to come within the application of the Executive order of January 28, 
1873, declaring that persons holding Federal office should, if accept- 
ing State, Territorial, or municipal office, be deemed to vacate and 
resign the Federal office. R. 36, 223, Feb., 1875; C. 14795, Dec. 16, 
1908. 

VI A. On the question of whether a draftsman in the classified 
civil service could accept from a foreign Government an appointment 
as vice consul, there being no salary attached to the office, held that 
he could not do so. C. 14795, May 8, 1907. 

VI B. Wliere a clerk in the Quartermaster's Department at Large 
accepted the office of alderman, held that his doing so was a violation of 

absence would interfere with the proper discharge of his duties as a necessary and 
important, even if an humble, part of the Army of the United States." 

In U. S. V. Naylon, an unreported case determined in the district court of Alaska 
(Div. No. 1), in July, 1906, in which the defendant demurred to an indictment for 
failure to render service under the road law of Alaska, the court said in sustaining 
the demurrer: "There can be no doubt that a civilian employee of the Army who 
resides within the bounds of and upon a military reservation, falls within the sixth 
exemption as set forth above (those who do not reside within the precinct), and hence 
is not subject to the road tax. It is, I think, equally beyond question that, owing 
to his peculiar status, a civilian employee of the Anny is not within the provisions 
*f the statute." * 

1 XIII Comp. Dec, 211. 



CIVILIAN EMPLOYEES VI C. 231 

theExeciitiveordersof Januaiyl7,1873. C. 14795, June 15,1903. So, 
also, in the case of a clerk in the Subsistence Department who was 
nominated for the position of city attorney. C. 14-795, Mar. 4, 1910. 

VI C. There is nothing in the United States statutes or Army 
Regulations which prohibits a quartermaster emploj^ee (post engi- 
neer) from accepting the office of member of a city council. C. 5023, 
Sept. 21,1898. 

VII A. A clerk in the employ of the Government, who is also a 
notaiy public, is not precluded by reason of his employment as such 
clerk from receiving the statutory fees from parties who may secure 
his services as notary in the execution of contracts with the Govern- 
ment. C. 167, Aug] 18, 1894.' 

VIII A. In view of the requirements of the act of August 5, 1882 
(22 Stat., 255), it is forbidden to detail an enlisted man for clerical 
duty in the Quartermaster's Department. Otherwise, however, as 
to the detail of an enlisted man in the office of the Chief of Artillery, 
which is no part of the War Department. O. 22133, Sept. 24. 1907. 

VIII B. A clerk appointed under the act of Congress, approved 
August G, 1894, is not eligible under existing law and regulations for 
appointment as a post noncommissioned staff officer. C. 2034, Feb. 
3, 1896. 

VIII C. Held, in view of the wording of the appropriation act, that 
one of the clerks provided for the headquarters of divisions and 
departments and the office of the Chief of Staff may be assigned to 
duty with the Artillery Board at Fort Monroe. The restriction is to 
the assignment of such clerks to duty in the several bureaus in the 
War Department. C. 19058, Jan. 16, 1906. 

IX A. There is no precedent for allowing the traveling and other 
legitimate expenses 01 the personal clerk of an officer ordered before 
a court of inquiry. If he be a material witness, he may of course be 
subpoenaed as such and be paid the legal witness fees. P. 57, 196, 
Jan., 1893. 

IX B. Transportation requests were issued by the Quartermaster 
Department to five postal clerks, also requests for one double berth 
eacli in sleeping car, from Washington, D. C, to Tampa, Fla., on a 
verbal order from the Assistant Secretar}^ of War, the nature of the 
journey being "for dut}^ with troops in the field." Held that the 
accounts could legally be paid from tlie appropriation for Armv trans- 
portation. C. 6927,^ Sept. 9, 1899. 

X A. In construing statutes (sees. 1763-1765, R. S.) restraining 
the Executive from giving dual or extra compensation, courts have 
aimed to carry out the legislative intent by giving them sufficient flexi- 
bility not to injure the public service and sufficient rigidity to prevent 
executive abuse.^ These statutes can by no fair interpretation be held 
to embrace an employment which has no affinity or connection, either 
in its character or by law or usage, with the line of his official duty, 
or where the service to be performed is of a different character and 
for a different place and the amount of compensation is regulated by 
law.^ Taking the sections all together, the purpose of the legislation 

* See, however, War Department order (A), Jan. 3, 1905. 

2 Landram v. United States, 16 Ct. Cls., 74, 82. 

3 Converse v. United States, 21 How., 463, 470, 473; United States v. Brindle, 110 
U. S. 688, 694; United States f. Shoemaker, 7 Wall., 338; Meigs v. United States, 
19 Ct. Cls., 497; 15 Op. Atty. Gen., 608. 



282 CIVILIAN EMPLOYEES X B. . 

was to prevent a person holding an office or appointment for which 
the law provides a definite compensation by way of salary or other- 
wise, which is intended to cover all the services which, as such officer, 
he may be called upon to render, from receiving extra compensation, 
additional allowance, or pay for other services which may be required 
of him either by act of Congress or by order of the head of his depart- 
ment, or in any other mode, added to or connected with the regular 
duties of the place which he holds; but that they have no application 
to the case or two distinct offices, places, or employments, each of 
which has its own duties and its own compensation, which offices may 
be held by one person at the same time. In the latter case he is, in 
the eye of the law, two officers or holds two places or appointments, 
the functions of which are separate and distinct, and according to all 
the decisions he is in such case entitled to recover the two compen- 
sations. In the former case he performs the added duties under his 
appointment to a single place, and the statute has provided that he 
shall receive no additional compensation for that class of duties unless 
it is so provided by special legislation.^ Where, therefore, the disburs- 
ing clerk of the War Department (salary, $2,000) performed certain 
clerical duties for the Gettysburg National Park Commission, which 
were separate and distinct from his duties as such disbursing clerk, it 
was held that he could legally be paid for such extra services from the 
appropriation for the Gettysburg National Park. C. 37Jf.7, Bee. 29, 
1897; 10U6, May 22, 1901; 11026, Sept. 7, 1901; 12629, May 28, 
1902; 21852, Aug. 16, 1907. 

X B. The appropriation act approved August 6, 1894, provides 
expressly that the clerks and messengers provided for by it shall be 
employed and apportioned to the several headquarters and stations by 
the Secretary or War." Held that they are each to be employed by 
the Secretary of War at a particular specified salary, and that depart- 
ment commanders have no power to discharge any of them or to 
increase or reduce their salaries, C. 380 Sept. 25, 1894- 

X C. Upon an application by a clerk of a bureau of the War Depart- 
ment to be paid an amount in addition to his regular salary, as a com- 
pensation for services performed by him for a certain period as acting 
chief clerk, held, in view of the provisions of sections 1764 (and 1765), 
R. S., that such additional compensation could not be allowed except 
by the authority of Congress." ^ R. 89, 643, Aug. 1878. 

XI A 1 . On the question of whether the resignation of an employee 
could be accepted to take effect upon the last day he worked, although 
that day might be of a date prior to that upon which the resignation 
was accepted, held that it could, as the acceptance of such resignation 
merely amounts to a declaration of the fact that the employee sepa- 
rate himself from the service by resignation on such prior date, C. 
18445, Aug. 18, 1905. 

XI A 2. Where a civilian accepted Government employment as 
a clerk, there being no understanding as to the tenure of office, 
held that the clerk had a right to resign when he saw lit and that his 
abandonment of the service, on a refusal to forward his resignation for 

1 United States v. Saunders, 120 U. S., 126, 129, 130; V Comp. Dec, 9; 6 id., 683. 

2 Compare Hoyt v. United States, 10 Howard, 109; United States v. Shoemaker, 7 
Wallace, 338; Stansbury v. United States, 8 Wallace, 33, i 



CIVILIAN EMPLOYEES XI A3. 233 

acceptance is no le^al ground for withholding his pay, C. 11800, 
Dec. 20, 1901; I48I4, June 18, 1903; 18U5, Aug. 18, 1905. 

XI A 3, Held, that the rule in regard to the acceptance of the resig- 
nation of a clerk is similar to that governing the resignation of officers 
of the Army, and that "after due notice of the acceptance has been 
communicated, there can of course, be no withdrawal of the tender 
or revocation of the acceptance." C. 18318, July 18, 1905. 

XI A 4. Where an employee (civil service) who had displayed 
political activity and was under investigation therefor, as having 
violated the civil-ser^ace rules, tendered his resignation to take 
effect immediately, held, that the resignation should not be accepted, 
but the employee dismissed for violating the civil-service rules. 
C. 27007, July U, 1910. 

XI B 1 . Held, that the ultimate discharge of a civil employee as of 
the date of his suspension is la^vful. C. 20297, Aug. 29, 1906. 

XI B 2. A clerk was discharged for cause. He applied for permis- 
sion to resign. Held that the discharge had been executed and could 
not be revoked, and that to substitute a permission to resign for the 
discharge would be to substitute something that did not happen for 
what actual!}^ happened, and therefore to make a false record. C. 
3976, Mar. 29, 1898; 15767, Jan. 12, 1904. 

XI B 3. A clerk in the Insular Bureau was discharged. Held 
that it is well settled that a legally executed discharge is beyond 
recall and that mere mistake on the part of the officers in recommend- 
ing or issuing the discharge will not justify its revocation. C. 15767, 
Jan. 12, 1904. 

XII A. Prior to the enactment of the act of May 30, 1908 (35 Stat. 
556), no payments could lawfully be made to civil employees for 
damages for personal injuries, or for medical or surgical expenses, 
out of the appropriation for the work in which the injured man was 
engaged,^ unless medical or surgical treatment was provided for in 
his contract of emplo3'ment; in cases arising subsequent to May 
30, 1908, where brlls for the relief of injured employees have been 
referred fo the department for recommendation, the view of this 
office has been that the relief afforded should be measured by the 
requirements of the act above cited.^ C. 23069, Apr. I4, 1908. 

XII B 1. In view of a letter dated June 30, 1910, from the Secre- 
tary of Commerce and Labor in which the section of the act of May 
30, 1908 (35 Stat. 556), which provides that an employee's compen- 
sation shall be "the same pay as if he continued to be employed" is 
construed as including subsistence in cases where subsistence was 
furnished at the time of the accident, held, that this interpretation 
settles the law unless it be reversed by the courts and that payment 
of such compensation may take the form of a commutation of rations. 
C. 23069, July 18, 1910. 

1 I Comp. Dec, 62; I id., 1881; VI id., 955. 

2 The act of May 30, 1908 (35 Stat. 556), as amended by the acts of Feb. 24, 1909 
(35 Stat. 645), and of Mar. 4, 1911 (36 Stat. 1452), has relation to persons injured in 
the course of their employment by the United States as artisans or laborers in any of 
its manu facturing establishments, arsenals, or navy yards, or in the construction of 
river and harbor or fortification work, or in hazardous employment on construction 
work in the reclamation of arid lands, or the management and control of the same, or 
in hazardous employment under the Isthmian Canal Commission. 



234 CIVILIAN EMPLOYEES XII B 2. 

XII B 2. Held, that relief could not be granted under the act of 
May 30, 1908 (35 Stat. 556), to a carpenter who was injured while 
working on a bridge acquired in connection with the water supply for 
West Point, since such work did not come within the scope fixed by 
the statute. C. 23853, Sept. 17, 1908. 

XIII A. Held, that the clerks in the Quartermaster Department 
who, in 1862, were employed as an armed force to protect public 
propert}^ at Washington, and to assist in its defense, were not m the 
military service proper, but remained civilians. The mere fact, 
therefore, that they served till their service was no longer required 
did not, at the end of that time, place them in the status of being 
''honorably discharged" in the sense of the civil-service rules regu- 
lating appointments to civil office. P. 35, 371, Oct., 1889; C. I644I, 
June 9, 1904. . 

XIII B. The term "service in war" as used in the uniform regula- 
tions relates to service as an officer or enlisted man in the military 
establishment and does not attach to the status of a civil employee. 
C. 17243, Feb. 1,1905. 

XIV A. A civil employee of the Quartermaster's Department does 
not become liable as a deserter by abandoning his employment.^ R 50 
226, Apr., 1886. 

XV A. A sailor shipped under articles which provided for a voy^age 
to a distant port and back to a final port of discharge in the United 
States and contained the clause that all those who are discharged at 
their own request within the time covered by the articles are not enti- 
tled to be discharged at a port in the United States. Held, that if the 
seaman is discharged by voluntary consent before a consul in a foreign 
port he shall be entitled to his wages uj) to the time of his discharge, 
but not for any further period. Further, Tield, that unless the time has 
expired or the voyage for which the seaman shipped has been com- 
pleted he should not be discharged in a foreign port where he is hable 
to become a pubhc charge. C. 24054, Nov. 12, 1908. 

XVI A. Inquiry having been made as to whether a clerk of the 
War Department who was treasurer of a society incorporated under 
the laws of the District of Columbia and having for its purpose the 
making of personal loans to employees in the Government service at 
2 per cent per month came within the provision of the Executive 
order of April 13, 1911, wliich prohibits the loaning of money at 
usurious rates of interest by clerks or other civilian employees in or 
under the War Department or the military estabhshment either as 
principal or agent, directly or indirectly, to others in the Government 
service, held, that while the duties wliich devolved on the clerk as 
treasurer of the society are not indicated there can be no doubt that 
he falls within the language "principal or agent" engaged "directly 
or indirectly" in making the loans. That the loans negotiated by 
the society are usurious in character and the relation to them of the 
clerk in question, as treasurer of the society, brings him witliin the 
prohibition of the Executive order. C. 28023, May 11, 1911. 

XVI B. Held, that under the exception from the requirements of 
the civil service rules regarding examination of "one driver of car- 
riage" for the "head of any executive department" followed by the 
words * ' and such other drivers of carriages as may from time to time 
. — . — . 1 

» See sec. 412 Digest Second Comp. Treas., vol. 2, 1869-1884. 



CIVILIAN EMPLOYEES CLAIMS: SYNOPSIS. 235 

be authorized by competent authority" permits of the appointment, 
without examination, of a second driver for the Secretary of War. 
C. 13238, Mar. 1, 1911. 

XVI C. The act of March 9, 1906 (34 Stat. 56) provided an appro- 
priation for marking the graves of the soldiers and sailors of the Con- 
federate Army and Navy who died in northern prisons, etc., and 
placed the appropriation under control of the Secretary of War. A 
commissioner appointed under the act to carry on the work died 
while in office, leaving uncertified vouchers for salary due the clerk 
of the commissioner. Held, that under section 173 R. S., the chief 
clerk of the War Department should certify the vouchers. C. 19834, 
Jan. 2, 1908. 

CROSS REFERENCE. 

Batson^s Squadron of Philippine Cavalry. .See Insignia op Merit III B 3. 

Contract dental surgeon See Army I G 3 d (4) (c?). 

Contract surgeon See Army I G 3 d (4) (c). 

Debts of See Private Debts X. 

Deserter at large See Desertion II A. 

Forfeiture of pay See Contracts XXXIII. 

Forfeiture of pay by sentence of military 

court See Appropriations LXVI. 

Hot Springs Hospital See Army I G 3 'd (7) (a) [1]. 

Insane, disposition of. See Insanity I 

Medical care of See Laws I B 9 ; 

Appropriations XLV. 

Military hospital, patient in See Laws II A 1 e (1). 

Pensionable status of Macabebe Scouts See Pensions I A 1. 

Prisoner of war See War I C 11 c (1). 

Quartermaster'' s volunteers, 1864 See Volunteer Army II F 1 b (3). 

Retainers to the camp See Articles of War LXIII A. 

Retired soldier as See Retirement II E 1. 

Retirement See III to IV. 

Road tax or ivork See Territories III G 1. 

Service as, under act of April 23, 1904 {33 

Stat., 264) See Retirement I C 1 c. 

Service in militia See Militia XVI E. 

Soldier cooks for See Articles of War XXI B 2. 

Supplies purchased from See Contracts XV A 3. 

. Taxation of. See Tax II. 

Telegraph lines, work on See Appropriations LVI . 

CIVIL OFFICE. 

Holding of, by Army officer See Office IV A to B. 

Holding of, by Volunteer officer See Office V A 7 d to e. 

Holding of , by enlisted man See Army I E 3a(l); b; b (1). 

Holding of , by civilian employee See Civilian employees VI to VII. 

In Philippine Constabulary See Command I C. 

Positions which are not See Office I V A 2 e to f ; B to C. 

Superintendent of national cemetery See Civilian employees V B. 

CIVIL SERVICE. 

Enforcement of discipline in See Articles of War LXIII C. 

CLAIMS.* 

I. HEAD OF DEPARTMENT HAS NO AUTHORITY TO REOPEN A CLAIM 

ONCE SETTLED Page 238 

n. EXECUTIVE AND ACCOUNTING OFFICERS HAVE NO AUTHORITY 
TO CONSIDER, FOR UNLIQUIDATED DAMAGES Page 240 

' Prepared by Maj. H. M. Morrow, judge advocate, assistant to Judge Advocate 
General. 



236 claims: synopsis. 

m. CLAIMS AGAINST U. S. DO NOT BEAR INTEREST..... Page 242 

IV. UNITED STATES NOT LIABLE FOR TORTS OF ITS OFFICERS, SOL- 
DIERS, OR OTHER AGENTS. 
V. UNITED STATES NOT LIABLE FOR ACT OF AN AGENT WHICH IS 

NEITHER UNLAWFUL NOR NEGLIGENT Page 246 

VI. SALVAGE AND CLAIMS FOR GENERAL AVERAGE CONTRIBUTION. 

A. Military Salvage Page 247 

B. Public Property Subject to Claim for Salvage and General 

Average. 

C. Where Private Property op Officer Shipped at Government Ex- 

pense Becomes Subject to General Average Contribution, such 
Contribution Should be Paid by the Officer, Not by the Gov- 
ernment i Page 248 

D. If Acting Beyond Requirements of Official Duty, Soldiers May 

Become Entitled to Salvage Page 249 

E. Property Cast on Shore of Military Reservation Becomes Prop- 

erty OF United States and No One is Entitled to Salvage. 

F. Vessel being Constructed under Contract Provision that It 

Becomes Property op United States as Rapidly as Partial Pay- 
ments ARE Made Can Not be Subject op Admiralty Lien. 
Vn. WAR CLAIMS. 

A. What Constituted Loyalty of Natives During Philiipine Insur- 

rection. 

B. Military Necessity. 

1. Where Government offers to compensate owner for private property 

seized as military necessity will pay value only without profit to 
owner Page 250 

2. Rule of nonliability of Government for torts of its ofiicera is not 

affected by the fact that person against whom tort was committed 
was American sympathizer. 

3. Construction paragraphs 15 and 38, G. O. 100, 1863, relating to seiz- 

ure and destruction of property on account of military necessity. 

4. Government not liable for damage accidentally resulting from de- 

struction of property as military necessity Page 251 

5. Instructions of President directing that private property taken for 

Army be paid for, and forbidding retention of private property 
under certain circumstances, do not supersede the laws of war 
authorizing the seizure of private property. 

6. WQiere forces of several nations operating jointly against common 

enemy and one furnishes transportation to the other reimburse- 
ment should be made Page 252 

C. Occupation of Property by Troops. 

1. No obligation to pay rent for occupation of public property. 

2. No compensation due for occupation of property in the actual train 

of war. 

3. Obligation to pay rent for use of private property occupied dependent 

on loyalty of owner. 

4. Government not liable to reimburse owner of private property occu- 

pied by United States troops because premises destroyed by 
reason of the owners being American sympathizers.... Page 253 

D. United States Not Liable for Private Property Destroyed as an 

Incident to Military Operations. 

E. United States Not Liable for Value ob* Material in Buildings 

Torn Down to Make Public Improvements While Country Under 
Military Occupation. 



claims: synopsis. 237 

Vn. WAR CLAIMS— Continued. 

F. Steam Launch Captured by the Army in Enemy Territory During 

Philippine Insurrection Not a Maritime Capture and Complete 
Ownership Passes to United States Page 254 

G. Claims for Property Taken from Loyal Citizens During Civil War 

Barred by Statute of Limitations. 
vm. CLAIMS BASED ON MEDICAL SERVICE RENDERED OFFICER OR 
SOLDIER. 
IX. CLAIMS OF SOLDIERS FOR PROPERTY TAKEN FROM THEIR POS- 
SESSION BY MILITARY PERSONS WHILE SICK IN HOSPITAL, 

CONFINED IN GUARDHOUSE, ETC Page 255 

X. SECTION 5498, R. S., AS TO OFFICER ACTING AS ATTORNEY IN 

PROSECUTION OF CLAIM AGAINST UNITED STATES Page 256 

XI. PARAGRAPH 838, A. R. 1910, AS TO PERSON IN MILITARY SERVICE 
PROVIDING INFORMATION WHICH CAN BE MADE BASIS OF 
CLAIM AGAINST GOVERNMENT. 
XII. MISCELLANEOUS. 

A. Claims Growing Out of Civil War Page 257 

B. United States Not Liable for Use of Vessel During San Fran- 

cisco Earthquake by Army Officers While Acting in Capacity 
op Relief Agents. 

C. United States Not Liable for Services of Counsel for Defendant 

Before a Court-Martial. 

D. United States Not Liable for Time, Cost, and Expenses op Civilian 

Witness Before Court-Martial in Collecting His Fee. 

E. United States Not Liable to Civilian Who Was Arrested as a 

Deserter, But Was Subsequently Found to be Innocent. 

F. No Law Authorizing Payment of Damages on Account op Injuries 

Received in Construction of Public Buildings or River and 
Harbor Improvements Page 258 

G. Section 1304, R. S., as to Deduction prom Pay op Army Officers on 

Account op Deficiency. 

H. United States Not Liable to a Person Cashing a Final Statement 
of a Soldier Which Has Been Given Him Erroneously. 

I. United States Not Liable for Private Property of a Contract 
Nurse Because op Sinking of a United States Hospital Ship. 

J. United States Not Liable to an Officer Whose Allowance op 
Personal Baggage Was Being Transported at Government 
Expense, the Baggage Being Broken Into and Part op the Con- 
tents Stolen. 

K, United States Not Liable for Registered Mail Package Lost on 
Army Transport. 

L. Extent op Liability op United States Where Land Leased for 
Maneuver Purposes. 

M. Section 1876, R. S., Prohibiting Employment op Attorney at Ex- 
pense OP United States. 

N. United States Not Liable for Attorney Fees for Services Ren- 
dered Soldier in Habeas Corpus Proceedings Page 259 

0. United States Not Liable for Fees and Expenses of Coroner in 
Holding Inquest over Deceased Soldier. 

P. Even a Just Claim Can Not be Satisfied by Secretary op Wak 
Without Authority op Congress. 

Q. Method op Procedure Where Disbursing Officer Has Lost Funds 
AND Desires to Apply To Court op Claims for Relief. 



238 CLAIMS I. 

Xn. MISCELLANOUS— Continued. 

R. United States Not Liable to Officers or Soldiers for Private 
Property Lost or Destroyed While Stored in a Government 
Storehouse. 

S. United States Not Entitled to a Horse Purchased from Person 
Who Had No Title Page 260 

T. United States Not Liable to Member of Court-Martial for Com- 
pensation FOR Acting as Clerk of Court. 

I. Under the law and practice governing the executive depart- 
ments a head of a department is held in general not to be empowered, 
without specific statutory authority for the purpose, to reopen a claim 
or other controversy once duly settled by his predecessor. So held, 
that the Secretary of War would not be empowered to reopen and 
reconsider a claim for the repayment of a certain sum (paid as com- 
mutation money by a party who claimed to have been illegally drafted) , 
the question of the allowance of which had been duly considered by a 
former Secretary (under a statute authorizing him to repay the same 
if deemed to be justly due), and had been unfavorably determined 
10 years before. And this though the correctness of such determina- 
tion was considered to be doubtful; the proper recourse of the claimant 
in such case being to Congress, R. ^2, 357, July 11, 1879; P. 1^2, 413, 
Aug. 27, 1890; C. 687, Dec. 10, 1894; U08, June 15, 1895. So, 
where the Secretary of War * refused to consider a claim on the ground 
that there was no evidence upon which action could be taken, the 
vouchers having been lost, lield, that a succeeding Secretary was with- 

' The reason of the restricted authority (illustrated under this title) of the execu- 
tive department in the allowance of claims may be found in the principle of public 
law, as expressed by Miller, J., in the case of The Floyd Acceptances, 7 Wall., 666, 
676 — that "in our structure of government all power is delegated and defined by 
law: * * * We have no officers, from the President down to the most subor- 
dinate agent, who does not hold office under the law, with prescribed duties and 
limited authority." U. S. v. Bk. of Metropolis, 15 Peters, 377; Rollins and Presbrey 
V. U. S., 23 Ct. Cls., 106, and cases cited; Waddell's Case, 25 id., 323; 9 Op. Atty. Gen., 
32; 12 id., 355; 14 id., 275; 15 id., 192; 16 id., 452; 1 Comp. Dec. 193; 2 id., 264, 401; 4 
id., 303; 6 id., 236, 245. In Rollins and Presbrey, v. U. S., supra, it was held, quot- 
ing from syllabus, that "any public officer in an executive department may correct 
his own errors and open, reconsider, or reverse any case decided by himself." In 
delivering the opinion of the court. Chief Justice Richardson said: "It has long been 
held in the executive departments that when a claim or controversy between the 
United States and individuals therein pending has once been fully considered, and 
final action and determination had thereon by any executive officer having jurisdic- 
tion of the same, it can not be reopened, set aside, and a different result ordered by 
any successor of such officer, except for fraud, manifest error on the face of the pro- 
ceedings, such as a mathematical miscalculation or newly discovered evidence, pre- 
sented within a reasonable time and under such circumstances as would be sufficient 
cause for granting a new trial in a court of law. This ruling and practice of the 
departments has been approved elsewhere and has been sustained by the courts. 
(9 Op. Atty. Gen., 34; 12 id., 172, 358; 14 id., 275, 387, 456; 15 Pet., 401; Lavalette's 
Case, 1 Ct. Cls., 147; Jackson's Case, 19 id., J504; State of Illinois Case, 20 id., 342; McKec's 
Case, 12 id., 560; Day's Case, 21 id., 264, and the opinion of the Judiciary Committee 
of the Senate, reported by Senator and Judge David Davis, quoted in Jackson's Case 
above referred to.) But it has never been doubted that any public officer in the 
departments may correct his own errors, and open, reconsider, and reverse in whole 
or in part any case decided by himself." The principles above stated apply fully to 
accounting officers in reference to the acts of their predecessors. Heads of departments 
may properly reverse constructions placed on acts of Congress by their predecessors, 
except in so far as vested rights may be affected therebji. Haughton v. Payne, 194, 
U.S., 99. 

See Cir. 22, W. D., Apr. 18, 1910, directions regarding the method to be followed in 
filing and investigating claims. 



CLAIMS I. 239 

out authority to consider the claim, there still being no vouchers or 
other evidence. P. 4'2, 444) Sept. 2, 1890. So held, also, where the 
Secretary of War had made a decision as to whether a certain person 
was entitled to a medal of honor, and it was proposed that a succeed- 
ing Secretary, under the act of April 23, 1904 (33 Stat., 274), should 
reconsider his predecessor's decision. C. 16913, Sept. 20, 1904- So, 
also, where an enlisted man was retired as a private and it was pro- 
posed that a succeeding Secretary of War should reopen the case and 
retire the soldier as a noncommissioned officer. C. 2044^, Sept. 27, 
1906. So where the proceedings of a court of inquiry had been fully 
acted on by the President, held that the above well-established execu- 
tive procedure, as well as the rule that the power to review such pro- 
ceedmgs is one that can be exercised but once and then is completely 
exhausted, makes the proceedings of the court of inquiry immune from 
further revision. C. 13244, Sept. 2, 1902. It is only for fraud, lack 
of jurisdiction, manifest error on the face of the proceedings (an 
erroneous calculation, for example) , or newly discovered evidence pre- 
sented within a reasonable time and sufficient to warrant a new trial 
at law, that a claim or controversy finally passed upon by a head of a 
department may, in the absence of specific authority from Congress, 
be reopened by a successor. P. 34, 225, 357, Aug. 1 and 13, 1889; 
39, 23, Feb. 20, 1890; 47, 223, May 16, 1891; 53, 44^, May 20, 1892; 
54, 462, Aug. 3, 1892; 58, 109, Feb. 18, 1893. But any public officer 
may correct his own errors and reopen his own decisions. P. 34, 225, 
Aug. 1, 1889. 

Where a claim has once been settled by a preceding Secretary 
under the provisions of a statute imposing such duty upon him, and 
subsequently a resolution is adopted by one house of Congress, or a 
committee thereof makes a report, adverse to the decision of the Secre- 
tary, such resolution or report may properly serve as a ground for 
reopening and again examining and settling the case; and while the 
views of the committee, or those indicated in the resolution, as to the 
meaning of the statute are entitled to respectful examination and con- 
sideration by the Secretary, they are not binding upon him in the 
reexamination and settlement of the claim. He must look solely to 
the statute which gave him jurisdiction and act according to his own 
best judgment of its meaning.^ P. 56, 6, Oct. 2, 1892. 

A final settlement of a claim under special statutory authority, 
followed by receipt and acceptance by the claimant of the amount 
awarded, estops the claimant from questioning that such allowance 
and payment constituted a full and final satisfaction of his entire 
claim.2 So where the Secretary of War, pursuant to act of Congress, 
had settled the claim of a railroad company for military transporta- 
tion by the allowance of a sum which was paid and accepted as a 
final award, held that without new authority from Congress he could 
not reopen the case for the purpose of allowing further credits, except 
to correct errors in calculation. R. 42, 332, June 17, 1879. 

1 19 Op. Atty. Gen., 388. 

2 50p. Atty. Gen., 122; lOid., 259; 12 id., 386; 4 Comp. Dec, 328; 6 id., 858. "Where 
a claimant has heretofore presented and has been allowed a claim for a part of an 
entire demand arising out of the same service and in the same right, such partial 
allowance is a settlement of the whole demand and a subsequent application for 
the remainder will be disallowed." 4 Comp. Dec, 328. 



240 CLAIMS II. 

II. As a general rule, neither the Secretary of War nor any execu- 
tive officer nor the accounting officers, in the absence of authority 
from Congress, is empowered to entertain, allow, settle, or pay a 
claim for unliquidated damages ^ against the Government, the term 
"damages" being here used in its legal sense. Therefore held, 
where a citizen, who had been permitted to make certain improve- 
ments upon public land, asked to be indemnified on account of 
alleged injury to his property and business caused by the extending 
of the limits of a military reservation over the land occupied by him. 
R. 42, 592, Apr. 13, 1880. So, lield, that the Secretary of War was 
not empowered to allow a claim for indemnity for his alleged wrong- 
ful arrest and imprisonment as a deserter, made by a party who 
claimed to have been arrested by mistake for the real offenaer {R. 
42, 1'22, Dec. 23, 1865; 26, 597,' June 17, 1868); or a claim for his 
arrest and detention as ^ deserter made by a party claimirig to have 
been illegally drafted (R. I4, 405, Apr. 20, 1865) ; or a claim for an 
alleged wrongful arrest and confinement made by a prisoner of state, 
or suspected person in time of war {R. 19, 166, Nov. 1, 1865; 36, 522, 
June 10, 1875) ; or a claim for reimbursement by a military employee 

1 Dennis v. U. S., 20 Ct. Cls., 119; Brannen v. U. S., id., 219; Pitman v. U. S., id. 
253, I Comp., 261, 283; II id., 174, 488; IV id., 446, 560; V id., 693, 770; VI id., 707- 
XVII id., 806, 810. 

But the rule against paying unliquidated damages does not prohibit payments 
made for work or materials actually furnished and received under a contract, express 
or implied, though the price is not fixed by such contract. McClure v. U. S., 19 Ct. 
Cls., 179; Dennis V. U. S., 20 id., 119; Pitman v. U. S., 648, id., 253; Brannen v. U. S., 
id., 223; I Comp., 283; II id., 365; III id., 365, 565; VI id., 953; VII id., 517. The 
rule controlling the payment of unliquidated damages is stated in Dennis v. U. S., 
cited above, as follows: 

"Technically, all claims for money due on contracts, where the exact amount pay- 
able is not thereby fixed, as in the case of goods purchased or work done without an 
agreed price, are claims for unliquidated damages. But they arise necessarily and of 
course from otherwise fulfilled and executed agreements, and their settlement rarely 
requires anything more than the ordinary processes of accounting, the prices being 
readily determined by the vouchers and reports of the public officers incurring the 
expenses, or by other means within reach of the accounting officers, who very properly 
take jurisdiction and pass upon such claims. (McClure's case, 19 Ct. Cls. R., 179.) 

"When serious controversies arise in such cases they may be transmitted to this court 
for adjudication, imder either the Revised Statutes, section 1063, or the Bowman Act. 
(Mar. 3, 1883, ch. 116, 22 Stat., 485.) 

" But claims for unliquidated damages founded on neglect or breach of obligations 
contrary to the terms of a contract, and not necessarily arising therefrom are of quite 
a different class. They must be sustained by extraneous proof, often involving a broad 
field of investigation and requiring the application of judgment and discretion upon 
the measure of damages and the weight of conflicting evidence. As was said in 
Power's case (18 Ct. Cls. R., 275), 'the results to be reached in such cases can inno 
sense be called an account, and are not committed by law to the control and decision 
of Treasury accounting officers.' (See Brannen's case, post 219, where the authorities 
are more fully cited.)" 

Also, notwithstanding the rule against the payment of unliquidated damages, where 
it is not against the interest of the United States, the Secretary of War may enter into 
a supplemental contract with a contractor discontinuing or modifying an existing con- 
tract and settling all claims between the contractor and the Government arising there- 
under. U. S. V. Corliss Engine Co., 91 U. S., 321; Satterlee v. U. S., 30 Ct. Cls., 31; 
21 Op. Atty. Gen., 78, 207; 22 id., 437; III Comp. Dec, 54; VI id., 953; VIII id., 
549; IX id., 43; XV id., 439. 

No executive or accounting officer, however, has authority to settle by a supple- 
mental contract such unliquidated claims as may arise from a breach of the contract; 
but resort must be had to the courts for their liquidation. Cramp & Sons v. U. S., 
216, U. S., 503; XVII Comp. Dec, 806, 810. * 



CLAIMS II. 241 

for loss of wages during a period of an arrest and trial by court- 
martial, the conviction in his case having been held to be invalidated 
by reason of a defect in the proceedings (R. 14, 225, Feh. 27, 1865) ; 
or a claim for the value of personal property illegally appropriated 
by a soldier {R. 42, 295, May 20, 1879). And, similarly, held where 
the claims were for corn taken from a field and damage done to 
fences by United States soldiers encamped in the vicinity ( C. 668, 
Nov. 22, 1894) ; for damages to a crop by cavalry horses breaking 
into the field ( C. 1553, July 17, 1895) ; for damage to a phaeton and 
harness caused by the runaway of a horse resulting from a stampede 
of United States cavalry horses ( C. 2611, Sept. 17, 1898) ; for damages 
done by United States troops to crops and fences in field maneuvers 
and to lands used for drilling purposes, if there was no contract 
express or implied by which the Government agreed to pay for the 
damages 1 {C. 4315, June 17, 1898; 4658, July 27, 1898; 4686, 
July 28, 1898; 5029, Oct. 3, 1898) ; for damages on account of an 
alleged infringement by the United States of a patent ( C. 595, Nov. 6, 
1894, tt^ Jo.^- ^0, 1898) ; for the value of a vessel wrecked on the 
beach of a military reservation, the vessel after several years on the 
beach having been removed in obedience to general instructions to 
clear up the reservation (C. 3627, Nov. 10, 1897). So, held, also, 
where a contractor had undertaken to commence the erection of 
certain buildings by March 30, 1898, but owing to the Spanish War 
was not permitted by the Government to begin the buildings until 
June 29, 1898, the contractor claiming $758 as an extra expense 
due to the increase in cost of lumber and the hire of workmen after 
war with Spain was declared. C. 5901, Mar. 4, 1899. So, held, 
where damages were claimed for a breach of contract for transpor- 
tation of freight to Alaska. C. 3969, Sept. 10, 1898. So, held, also, 
where damages were caused to a tug by its fouling the buoy lines of 
certain mines lawfully planted by the military authorities. C. 18526, 
Sept. 12, 1905. So, held, also, where a battery of light artillery law- 
fully engaged in target practice fired certain shells which missed the 
target and, not exploding when they came to rest, were lost and a 
year afterwards were found by some children, who caused them to 
explode, thereby causing severe injuries to the children. C. 19319, 
Mnr. 10, 1906. So, held, where a claim was for damages to property 
resulting from the firing by coast artillery batteries. C. 9818, 
Feh. 12, 1901; 15872, Feh. 9, 1904; 19812, May 29, 1906. So, held, 
where the claim was for damages to a sawmill resulting from light 
artillery target practice. C. 17495, Feh. 4, 1905. So, held, where 
the claim was for damages resulting from the diversion of a water 
course so as to cut a channel through the property of the claimant. 
C. 11634, No^^- 26, 1901. So, held, where the claim was for damages 
to a private vessel resulting from its coUision with an army trans- 

' But the rule would be otherwise where the premises were occupied under such 
circumstances that the law would imply a contract to pay rent to those owning the 
premises occupied and to pay damages to those owning the premises or other prop- 
erty so damaged, and in such case an appropriation for paying the "expenses" of the 
Organized Militia to participate in joint encampment witn the Regular Army would 
cover an expenditure for such a purpose. XVI Comp. 589. So also where an act of 
Congress appropriated money for "leases of land and damages of property," it would 
include imliquidated damages. C. 16525, May 19, 1904. 

93673°— 17 16 



242 CLAIMS III. 

port.^ G. 14628, May 9, 1903. So, held, also, where the claim was 
for damages to a launch of the Philippine Government resulting 
from its collision with an army launch. G. 229Ii.6, Mar. 21, 1908. 

Notwithstanding the rule against the payment of unHquidated 
damages, it would be proper to provide in a lease of land for maneuver 
purposes for the consideration by a board of the damage done to 
fences, crops, and the like by troops in the execution of military 
maneuvers, notwithstanding that such claims are unliquidated 
claims and for the payment of such damages as might be awarded 
by the board.^ C. 16525, May 19, 1904. 

III. Notwithstanding the equitable principle that interest is an 
incident of a debt, the rule is well settled that, except where its pay- 
ment is expressly stipulated for by contract, or specifically author- 
ized by act of Congress, the United States is not bound, nor is any 
executive official empowered, to pay interest on claims, whether 
arising out of contract or otherwise.^ R. 21, 564, J'^^V ^^ 1866; 32, 
606, May 20, 1872; P. 52, 448, Mar. 22, 1892; 54, 464, Aug. 3, 1892. 

IV. It is well settled that the United States is not legally respon- 
sible for the torts or criminal acts of its officers or agents, whether of 
commission or omission,* and as the Government can act only through 
its officers or agents, no wrong resulting from a tortious or criminal 
act would be the wrong of the Government, but would be the wrong 
of only the person commiting it. So lield, where claims were for 
personal injuries infficted upon citizens by United States soldiers, 
(a 5108, Oct. 4, 1898; 6100, Mar. 20, 1899; 6586, June 17, 1899); 
for the support of the wife and children of a citizen killed by a soldier 
(C. 5261, Nov. 5, 1898; 16825, Sept. 3, 1904) I ior damages on account 
of injuries resulting from accidental or negligent shooting of a citizen 

^ In XIII Comp. Dec. , 349, it is said, ' ' Moreover, it is doubtful if the head of a depart- 
ment is authorized to liquidate a claim for a marine tort committed by a vessel of the 
United States. It is well established that in ordinary cases the United States is not 
liable for damages resulting from the negligence or tortious acts of its officers or agents. 
(VI Comp. Dec, 751; Xlid., 767; XII id., 580, 825.) But an exception to this rule 
appears to be recognized in the case of marine torts. But even in such cases claims 
for damages are not enforceable against the United States," citing the Siren, 7 Wall., 
155 . The Comptroller further remarked in the same opinion , " It has been the practice 
to refer such claims to Congress for appropriation . ' ' 

^ Such a provision is now incorporated in all leases of land for maneuver purposes 
and for the use by the Organized Militia as target ranges. 

3 Angerica v. Bayard, 127 U. S., 260; U. S. i;. McKee, 91 id., 450; Tilson v. U. S., 100 
id., 43; Harvey v. U. S., 113 id., 243; Todd v. U. S., Devereaux (Ct. Cls.), 95; Wight- 
man V. U. S., 23 Ct. Cls., 144; 1 Op. Atty. Gen., 550, 554; 2 id., 463; 3 id., 635; 4 id., 
14, 136, 286; 5 id., 72, 105, 138, 334, 356; 6 id., 533; 7 id., 523; 9 id., 57, 449; 14 id., 
30; 17 id., 351. But where a sum of money was paid by a State for interest upon its 
bonds issued in 1861 to defray expenses to be incurred in raising troops for the national 
defense, that sum is regarded as a principal sum which the United States agreed to 
pay, and not interest within the meaning of the rule prohibiting the allowance of 
interest accruing upon claims against the United States prior to the rendition of judg- 
ment. U. S. V. New York, 160 U. S., 598; Pennsylvania v. U. S., 36 Ct. Cls., 507. 
The act of Mar. 3, 1911 (36 Stat., 1141), relating to the Court of Claims, reenacts the 
following provision: "No interest shall be allowed on any claim up to the time of 
rendition of judgment thereon by the Court of Claims, unless upon a contract expressly 
stipulating for the payment of interest. " 

In the absence of statutory authority, a military officer, in entering into a contract 
as the representative of the United States, should not stipulate with the contractor 
that, in case payments due him under the contract are delayed beyond a certain time, 
he ^vill be entitled to claim interest thereon. * 

* Pitman v. U. R., 20 Ct. Cb., 255; Gibbons v. U. S., 8 Wall., 269; id. 7 Ct. Cls., 
105; Langford v. U. S., 101 U. S., 341; German Bank v. U. S., 148 U. S., 580; Hill v. 



CLAIMS IV. 243 

by a soldier {C. 5260, Nov. 5, 1898); for damages to railroad train 
equipment by soldiers traveling thereon (C. d^SS, Dec. 10, 1898); 
for damages on account of injur\^ received while a contract nurse on 
a United States transport and due to alleged negligence of officials 
of the Government (C. 664I, June 28, 1899) ; for damages on account 
of injuries infficted by a soldier upon a Cuban policeman while the 
latter was attempting to arrest the soldier {C. 17758, Mar. 25, 1905); 
for damages to a private vehicle resulting from its collision with a 
battery caisson (C. 25035, May 27, 1909) or other Government 
vehicle (C. 29294, Jan. 15, 1912); for damages from personal injuries 
caused by a visitor to a national cemetery stepping into a drop pipe, 
which it was claimed was not kept in a condition of reasonable 
safety (0. 15861, Feb. 6, 1904); foi' damages to a thrashing machine 
caused by the collapse of a bridge in a national cemetery, due to the 
alleged weakened condition of the bridge arising through govern- 
mental negligence {C. 15861, Dec. 10, 1905); for damages for the 
killing of an American soldier by a Cuban policeman during the 
time Cuba was under military government, it appearing that the 
killing was not justified, and the policeman being considered as an 
agent of the United States in cariying on the military government in 
Cuba (C. 11027, Aug. 22, 1901) ; for damages for the negligent injury 
to property or wounding or killing of a human being or private ani- 
mal by a bullet fired by troops while engaged in target practice 
(C. 13584, Nov. 5, 1902; 16675, Aug. 4, 1904; 21939, Aug. 16, 1907); 
for damages caused by a member of a recruiting party leaving the 
water running in a bathtub at the recruiting office, so that the water 
ran over and damaged goods on a lower floor (C. 22049, Sept. 10, 1907) ; 
for the value of a private launch that soldiers while in swimming 

U.S., 149 U.S., 593; Schillinger i>. U. S., 155 U. S., 163; Belknap i). Schild, 161 U. S., 
10; Morgan v. U. S., 14 Wall., 531; XII Comp. Dec, 580. 

Judge Story in his work on agency, sec. 319, says: "It is plain that the Government 
itself is not responsible for the misfeasances or wrongs or negligences or omissions 
of duty of the subordinate officers or agents employed in the public service; for it 
does not undertake to guarantee to any person the fidelity of any of the officers or 
agents whom it employs since that would involve it, in all its operations, in endless 
embarrassments and difficulties and losses, which would be subversive of the public 
interests." In Shields v. Ohio, 95 U. S., 319, it was said "A Government may be aloser 
by the negligence of its officers, but it never becomes bound to others for the conse- 
quences of such neglect, unless it be by express agreement to that effect." 

WTiile the Government is not pecuniarily responsible for torts committed by officers 
and enlisted men, the latter are so responsilile, and aside from their liability to civil 
suit may and should in cases covered by the fifty-fourth article of war be proceeded 
against as required by that article. See the following cases to the effect that a Gov- 
ernment agent committing a tort is personally responsible: Little v. Barreme, 2 
Cranch, 170; Cammeyer v. Newton, 94 U. S., 234; Osborn v. U. S., 9 Wheat., 871; 
Board of Liquidation v. McComb, 92 U. S., 541; Allen v. Baltimore, etc., R. Co., 114 
U. S., 311; Pennoyer v.^ McConnaughy, 140 U. S., 1; Belknap v. Schild, 161 U. S., 18. 
Claims against the United States for damages arising from the torts of Government 
agents have repeatedly been presented to Congress, but that body has refused to 
appropriate for them except in a few unusual cases. An appropriation was made 
in the following instances among others: In connection with an explosion in the 
Washington Arsenal, June 17, 1864 (13 Stat., 416-417); in connection with an explo- 
sion in the Washington Arsenal in March, 1866 (14 Stat., 351); in connection with 
the death and injury of a number of clerks at Ford's Theater in Washington, June 9, 
1893 (28 Stat., 392; 29 Stat., 273; 30 Stat., 109; 31 Stat., 1612); in connection with the 
explosion of an ammunition chest in the city of Chicago, July 16, 1894 (3^ Stat., 1452); 
in connection with an injury to a German subject injured by a bullet fired by troopa 
while at target practice in 1892 (30 Stat., 106). 



244 CLAIMS IV. 

used without authority to dive from, the launch being accidentally 
sunk from overcrowding {C. 29108, Oct. 10, 1911) \ for damages to a 
private vessel from a collision with a Government vessel {C. 20194, 
Aug. 10, 1906); for the value of property stolen or illegally appro- 
priated by a soldier {R. 63, 279, A^r. 7, 1887; P. 33, 166, June 21, 
1889) ; for the value of certain ships' supplies stolen by military 
prisoners on board a chartered transport {C. 11974, Jo^f^- ^'^i 1902); 
tor the value of jewelry stolen from natives by soldiers during active 
military operations in the Philippine Islands (C. 16627, Nov. 12, 
1904) ) for the value of timber cut on private land b}^ soldiers wrong- 
fully and in ignorance that the land was private property, even 
though such soldiers were at the time engaged in the discharge of 
official duties (P. 38, 319, Feb. 8, 1890); for injuries to fences and 
crops resulting from the unauthorized maneuvering of troops over 
private lands near a mihtary post {C. 12972, July 23, 1902); for the 
value of intoxicating liquors destroyed by troops while on duty in 
the city of San Francisco in the prosecution of rehef work after the 
earthquake in 1906, it appearing that Congress had not assumed 
responsibility for such acts and had made no appropriation for the 
payment of such damages. The liquor referred to above was 
destroj^ed by the troops as a matter of necessary police precaution in 
order to minimize the danger from fire and to prevent possible mob 
violence {0. 20212, Dec. 19, 1906); for the value of cigars, clothing, 
and other property (not consisting of intoxicating liquors) claimed 
to have been looted by troops during the San Francisco earthquake 
{C. 20212, Mar. 27, 1907) ; for reimbursing enlisted men for sums of 
money deposited by them with their company commander and 
embezzled by him (C. 17191, Nov. 23, 1904). 

Where certain trees on private land were cut down for use in 
the construction of a pontoon bridge in the course of tactical instruc- 
tion under direction of the authorities of a service school, held that 
while the owner of the trees might lawfully be paid for the timber 
out of the funds set aside for the use of the service school in connec- 
tion with which the pontoon instruction was being carried on, he 
could not be allowed anything in the nature of damages for the tor- 
tious act of the troops in cutting the timber. C. 24968, May 17, 1909. 

A reward having been offered by the military authorities for three 
Government mules that had been stolen, a sheriff seized three mules 
which he had good reason to believe were the stolen animals. The 
person from whose {possession the sheriff had taken tlie mules sued 
the sheriff for the value of the mules and obtained judgment against 
him. The sheriff made claim against the Government to be reim- 
bursed for the amount of the judgment and his expenses. Held, that 
the Government was not legally responsible for such items and that 
if the sheriff had been misled by an officer or agent of the Govern- 
ment as to the identity of the three mules seized the Government 
would not be liable, as it would not be responsible for the torts of its 
officers or agents. C. 17526, Feh. 11, 1906. So, held, also, where a 
city marshal arrested as a deserter a })rivate citizen who was not in 
fact a deserter from the Army, and the person arrested sued the 
marshal and recovered judgment against him. C. 19263, Feb. 28, 
1906. 

A provision in a lease of land for maneuver purposes for the con- 
sideration by a board of the damage done to fences, crops, and the 



CLAIMS IV. 245 

like by troops would not include losses resulting from thefts, larce- 
nies, and other predatory acts committed by the troops which took 
part in the maneuvers, as the United States, in the absence of author- 
ity of Congress, would not be responsible for the torts or criminal acts 
of its agents.i ^ 16525, May 19, 1904; 17585, Feb. 27, 1905. Nor 
would any executive officer of the Government be authorized, in the 
absence of Congressional legislation, to enter into a contract to make 
the United States responsible for tortious or criminal acts of its agents. 
C. 14971, Jan. 29, 1904; 17585, Feb. 27, 1905. 

During the Philippine insurrection United States troops occupied 

Erivate property under an implied lease, and the premises were 
urned wliile in their possession. Held, that if burned through the 
carelessness of the troops the Government wouhl not be liable as it 
is not hable for the torts of its agents and, held, further, that the 
occupation of the premises did not give rise to an implied obhgation 
to reimburse the owner for the destruction of the premises.^ C. 
15541, Dec. 2, 1903; 25460, Aug. 24, 1909. 

As the United States is not legally responsible for the torts of its 
officers or agents, the Secretary of War could not authorize from the 
appropriation for "aU contingent expenses of the Ai'iny not other- 
wise provided for," the payment of damages as compensation for 
personal injury to a native Filipino accidentally shot on a rifle range. 
C. 27214, Aug. 27, 1910. 

Where damages were claimed by the owners of a private tug, due 
to the tug fouling the buoy lines of certain mines planted by the mili- 
tary authorities (C. 18526, Sept. 12, 1905); and where a battery of 
light Artillery while engaged in target practice, fired certain shells 
which missed the target and, not exploding when they came to rest, 
were lost and, a year afterwards, were found by some children who 
caused them to explode, thereby seriously injuring the children (C. 
19319, Mar. 10, 1906); and where a sewer was constructed across 
private lands over which a right of way had been gi'anted and an 
injury was done to private property by reason of the construction of 
the sewer {C. 19295, Mar. 13, 1906); where a contractor had a con- 
tract to cut hay on a military reservation and deliver the same to the 
military authorities and certain of this hay in stacks and not yet 
accepted by the Government caught fire from the burning of fire 
guards on the reservation (O. 24842, May 1, 1909); wdiere a horse 
was injured by falling into the opening of a coal vault on Government 
property (a 27683, Jan. 12, 1910); where a bullet fired by troops 
engaged in target practice wounded a private citizen at a distance 
from the target range {C. 15281, Oct. 24, 1903; 15537, Nov. 24, 1903); 
where the mules of a siege train ran away and injured private prop- 
erty {C. 8949, Sept. 17, 1900; I46O6, May 1, 1903); where a private 

1 See XVI Comp. Dec, 589. 

2 See U. S. V. Bostwick, 94 U. S., 68, where it is said: "As to the destruction of a 
part of the buildings by fire, there was, as has been seen, no express agreement to 
repair in the lease. The implied obligation is not to repair generally, but to so use 
the property as to make repairs unnecessary as far as possible. It is in effect a cove- 
nant against voluntary waste and nothing more. It has never been so construed as 
to make a tenant answerable for accidental damages, or to bind him to rebuild, if the 
buildings are burned down or otherwise destroyed by accident. In this case it has not 
been found, neither is it claimed in the petition, that the premises were burned 
through the neglect of the United States. No judgment can, therefore, be rendered 
against the United States on this account." 



/ 

246 CLAIMS V. 

vessel was damaged by a collision with a Government tug {C. 19114, 
Feb. 1, 1906; 19571, Apr. 26, 1906); where a citizen was shot by a 
member of the provost guard in attempting to kill a mad dog {C. 5983, 
Mar. 9, 1899) ; where fishing nets were damaged by the removal of a 
cable, the nets having been built over the cable after it was laid {C. 
18760, Oct. 24, 1905); where a bicycle belonging to a clerk of the 
War Department was injured by a public animal, the bicycle being 
lawfully in the courtyard of the State, War and Navy Building at 
Wasliington (C. 15324, Oct. 6, 1903); where a small boat that had 
come ashore at a military reservation in violation of repeated warn- 
ings not to land, was destroyed by the commander of a mihtary 
patrol in obedience to orders of his commanding officer (C 9762, Feb. 
4, 1901), held, that if the action of the Government or its agents in 
the above instances was a perfectly legal one, there being no negli- 
gence of any character, the Goverfiment would not be responsible in 
damages; ^ and that, on the other hand, if the injury resulted from 
an unlawful act or negligence on the part of any agent of the Gov- 
ernment, the latter would not be responsible, since it is not liable for 
the torts of its agents. 

V. Where a private landowner claimed that the value of his prop- 
erty had been reduced by the erection of a Coast Artillery battery 
near his premises, held that as Congress, by authorizing the erection 
of a battery at that place, had, in effect, declared that there was a 
legal necessity therefor, the battery could not be considered a legal 
nuisance, and the United States would not be liable for any damages 
that might result therefrom. C. 15872, Feb. 9, 1904. So where the 
Secretary of War authorized State and county officials to estabfish, 
under the supervision of the Marine-Hospital Service, on lands under 
the control of the War Department a hospital for contagious and 
infectious diseases, held that the establishment of such a hospital 
would not be a nuisance, but that if it could be considered a nuisance, 
the nuisance would be one created through the tort of an officer of 
the United States, and as the United States is not liable for the torts 
of its officers, it would not be liable to adjoining property owners 
who claimed to be injured by the establishment of the hospital. 
C. 21749, July 6, 1907. 

Two native women of Porto Rico received gunshot wounds, the 
accidental result of a shot fired by a United States soldier who at 
the time lawfully fired the same while attempting to arrest another 
party. They submitted claims for damages. Held that the United 
States was not legally liable therefor whether or not there was negli- 
gence on the part of the soldier. But as these claims were of a class 
for which Congress sometimes makes compensation, and as the 
military authorities weie exercising all the powers of government in 
the island of Porto Rico, advised that compensation for the injuries 
could legally be made from the revenues of the island. If made, 
however, in the form of an annuity it would remain operative during 
the continuance of the military government only. C. 6642, June 
26,1899. 

Although there is no law of Congress which vests in any officer 
or department of the Government authority to exercise control over 
shippmg in navigable waters of the United States with a view to 

' The Nitro-Glycerine case, 15 Wall. 524. 



CLAIM* VT A. 247 

restraining its movement in order to facilitate target practice or 
minimize danger therefrom, yet as the seacoast defenses are con- 
structed out of funds appropriated by Congress and the guns and 
ammunition used in target practice are obtained with similar funds, 
advised, that when the guns m any particular work of seacoast defense 
are used by its garrison for target practice and the firing is being 
conducted in conformity to regulations prescribed by the Secretary 
of War, the garrison would be not only engaged in a lawful occupation 
but would be carrying into effect the will of Congress, and should 
be considered as engaged in the performance of their public duty 
and, therefore, if while so engaged and exercising a due degree of 
care to prevent accidents to passing vessels a vessel is injured, it 
is doubtful whether a claim for reimbursement could be successfully 
maintained before Congress. C. 16666, Aug. 4, 1904. 

VI A. A loyal citizen of a State within the theater of the Civil War, 
in order to prevent the capture by the enemy of a steamer belonging 
to him, caused it to be run up a small stream and concealed. It was, 
however, discovered by a partisan Confederate force, by which it was 
dismantled and partly sunk but not held — the owner continuing to 
assert through an agent who remained with it, his right of property 
therein. Subsequently it was taken possession of, raised, refitted 
and used in the war by the Federal military authorities. Upon an 
application by the owner at the end of the war for its restoration and 
compensation for its use, Tield, that not having been in fact taken from 
the possession of the enemy it was not subject to a claim for military 
salvage, such as that allowed for property recaptured ^ or recovered 
from pirates; 2 but that the sums expended by the Government in 
raising and refitting it might properly be offset against the amount 
clauned for its use. R. 20, 473 and 486, Mar. 16 and 26, 1866. 

The capture from an enemy of enemy's property, though by civilians, 
does not entitle the captors to military salvage. Thus where a 
steamer belonging to the enemy, and which had been used by them 
in the prosecution of the war, was removed from New Orleans just 
before its occupation by the Federal forces and concealed in Bayou 
Jacques where it was found and taken possession of by a detachment 
of United States troops and military employees, by whom a claim for 
military salvage was thereupon interposed, lield, that such claim was 
quite without legal sanction, the steamer having become, upon cap- 
ture, under the provisions of sec. 1 of the act of March 12, 1863 (12 
Stat. 820), the property of the United States. R. 20, 665, Apr. 25, 
1866. 

VI B. It is a general principle of law that public property stands 
on the same footing with private property as regards salvage and 
general average, and there is a hen against pubhc property for 
services and general average, except that where property of the 
United States is in the actual possession of the United States it 
can not, in the absence of authority fi'om Congress, be the subject 
of an admiralty lien to enforce such claims for salvage and general 
average. Therefore where the possession of pubhc property has 
been turned over to a carrier the property may become subject to such 

' See the Amelia, 4 Dallas, 34: Bas v. Tingy, id. 37; Talbot v. Seeman, 1 Cranch, 1; 
The Adeline, 9 id. 244; Marshall v. Delaware Ins. Co. Fed. Ca8.,9127, 
* Davison v. Seal-skins, 2 Paine, 324; Lea v. The Alexander, id. 466. 



248 CLAIMS VI c. 

a lien, and if the United States again gets possession such possession 
of the United States will be subject to the lien. ^ R. 21, 2Jf.l, Feb. 
16, 1886; G. 17725, Mar. 31, 1905; 17851, Am. U, 1905, 23938, Jan. 
26, 1909; 21^565, Mar. 1909; but to this rule exceptions have been 
established. It has been held that our national ships of war should 
not be hable to arrest and detention at the suit of salvers, "on account 
of the injury and inconvenience which might result to the public 
interests therefrom." Tliis reasoning would appear to be equally 
apphcable to a case of supplies en route to armies in the field in 
tnne of war. So, held, where certain subsistence and quartermaster 
stores, in transit to our armies in the field and needed for their use, 
were detained by the United States marshal at Cairo, 111., at the suit 
of the salvers of a steamer sunk xt'ith her cargo (including these 
supplies) in the Mississippi River. R. 21, 2^1, Feb. 16, 1866. 

During the war between Russia and Japan an English merchant 
ship carrying public property of the United States was stopped 
by a Russian cruiser in the Red Sea, searched, and held for some 
time and then released. Held, that the United States was subject 
to a claim for general average for losses sustained by the ship. C. 
19690, May 18, 1906. 

VI C. Where the private property of officers is being transported 
at Government expense on a private vessel, which was disabled 
and became subject to a lien for salvage, held, that the general average 
claim against the property of the officers should be paid by the 
Government in the first instance, and the subject of reimbursement 
by the officers left to future adjustment between them and the 
United States. 0. 17725, Mar. 31, 1905. 

On a change of station from New York to Fort Caswell, N. C, an 
officer's property was shipped by sea, and the ship having stranded 
a general average contribution was declared on the cargo. The 
officer objected to paying his share of the contribution and urged 
that it should be paid by the Government because the military 
authorities should have slupped his property by rail at carrier's risk 
instead of by sea. Held, that in the absence of an express stipula- 
tion to the contrary shipment by sea as well as by rail would be at 
carrier's risk the Government was not required by law or regulations 
to sliip private property of an officer by rail rather than by sea, but 
as an expenditure of public funds was involved should sliip in the 
way that would be most economical, time being considered as an 
element, and that if in case of a shipment by sea the private prop- 

1 U. S. V. Wilder, 28 Fed. Cas. No. 16694; The Merrimac, 1 Benedict, 201; Rees 
V. U. S., 134 Fed. Rep. 146; Brown's administrator v. U. S. 15 Ct. Cls. 392; 5 Op. 
Atty.Gen.757; IComp.166; Hid. 409; IV id. 567; but see VII Comp. Dec, 365, where 
services in the nature of towing were rendered aiid a claim for salvage was denied. 
In The Davis, 10 Wall. (U. S.)'l5, the syllabus is as follows: 

"1. Personal property of the United States on board of a vessel, for transportation 
from one point to another, is liable to a lien for salvage services rendered in saving 
the property. 

"2. Such lien can not be enforced by the courts by a suit against the United States. 

"3. Nor by proceeding in rem, when the possession of the property can only be had 
by taking it out of the actual possession of the officers or agents of the Government 
charged therewith. 

"4. It may be enforced by a proceeding in rem where the process of the court can 
be enforced without disturbing the possession of the Government, which, being 
thus compelled to appear in the court to assert its claim, must discharge the lien 
before the property will be delivered to it." (2 Parsons Maritime Law, 625.) 



CLAIMS VI D. 249 

erty of an officer should become subject to a general average contri- 
bution such contribution should be paid by the officer and not by 
the Government. G. 20919, Jan. 16, 1907. 

VI D. The troops at a seacoast post exerted themselves, as required 
by their official dut}'', to save certain Government property, and, 
exerting themselves in addition beyond the requirements of their 
official duty, saved the cargo of a ship in distress near the post. 
The commanding officer of the post refused to release the cargo until 
the master of the vessel had paid $160 as salvage. This sum, when 
paid, was placed in the several company funds. The master of the 
vessel, after paying the salvage demanded, applied to the War 
Department to have it refunded. Held, that under the circumstances 
of the case the troops engaged in saving the cargo were entitled to 
salvage, and that if those engaged in tlie salvage acquiesced there 
was no objection to the money being distributed among the several 
company funds. 0. 12721, June 13, 1902. 

VI E. Certain lumber was cast ashore within the limits of the 
military reservation of Fort Caswell, N. C. The lumber probably 
came from vessels lost or damaged off the coast. Exclusive juris- 
diction over the reservation had been ceded to the United States, 
and the Treasuiy Department had been given a license by the War 
Department to use a portion of the beach for a life-saving station, 
A portion of the lumber cast ashore was taken possession of by the 
keeper and crew of the life-saving station and the remainder by the 
militaiy authorities. Held, that all lumber cast ashore, whether 
upon that portion of the beach assigned to the life-saving service or 
upon other portions, became the property of the United States, sub- 
ject to the claims of any possible owner, and this regardless of whether 
it should be considered technically as "wreck" or "drift stuff." 
Held, also, that the services rendered by the keeper and crew of the 
life-saving station and by others were not services entitling them to 
payment for salvage. G. 20582, Nov. 5, 1906. Held, further, that 
if lumber, logs, and driftwood have come ashore on a military reser- 
vation, and thus become the property of the United States, they 
should be cared for like other Government property, and if consid- 
ered unsuitable to the service may be disposed of as provided by 
section 1241, R, S, G. 20721, Dec. 6, 1906. 

VI F, Where a contract for the construction of two scows pro- 
vided that ' ' all parts of the scows paid for under the system of partial 
payments above specified shall become thereby the sole property of 
the United States, but tliis provision shall not be interpreted as 
relieving the contractor from the sole responsibility for the proper 
care and protection of said parts prior to the delivery of the com- 
pleted scows to the United States," held, a private person could 
not obtain an admiralty lien on the scows as against the Government. 
G. 3946, Nov. 5, 1907. ] 

VII A. In determining whether during the Philippine insurrection 
the owner of property was an enemy — that is, was not loyal — 
consideration should be given to the peculiar circumstances connected 
with the warfare in the Philippine Islands. In the Philippines 
when the Spanish War was over the United States ceased to be in 
enemy territory. An insurrection broke out and a condition of war 
existed for several years. This war was, however, not in enemy 
country, and the policy of the United States was to consider 
all Philippine communities loyal except where resistance was met 



250 CLAIMS VII B 1. 



1^1 



or there was direct knowledge of disloyalty. The people at large 
were not required to take the oath oi allegiance. Therefore, all 
inhabitants of the Philippines, except in certain limited areas where 
the conduct of the inhabitants led to the conclusion that an entire 
community was disloyal, should be presumed to be loyal to the 
de jure government unless they were serving in the insurgent ranks 
or were otherwise known to be in opposition. As the people at 
large were never required to take an oath of allegiance, the lailure 
to take such an oath should not be considered as conclusive in 
determining the question of the loyalty of the owner of property 
taken for military purposes. So, also, the fact that property was 
found to be abandoned by its owner should not be considered as 
conclusive that the owner was disloyal, as it is a well-known fact 
that in many instances there was a wholesale abandonment of towns 
on the approach of American troops by reason of the wild stories 
circulated among the natives for political effect, and that within a 
few days or weeks practically the entire population would return to 
reoccupy their property. In such cases the act of fleeing from the 
Americans usually was not an indication of disloyalty to the American 
Government. Therefore, in the Philippines where property had 
been taken or occupied by the Government, the burden should be 
upon the Government to prove the disloyalty of the native and not 
on the native to prove his loyalty. The state of affairs in the seced- . 
ing States during the Civil War was not analogous to that in the 
Philippines. During the Civil War those States which seceded 
were recognized as enemy country, and their inhabitants were recog- 
nized as enemies, and therefore individuals who resided within the 
limits of the seceding States and yet claimed to be loyal were required 
to prove their loyalty. C. 17219, Jan. 13, 1906; 15204, Apr. 19, 
1906; 15699, Apr. 28, 1906; 165^5, May 1, 1906; 16784, May 2, 1906. 

VII B 1 . Wliere private property is seized in time of war as a 
military necessity and the Government undertakes to compensate the 
owner, there will be paid a sum sufficient to cover the value alone 
without profit to the owner. C. 15448, Nov. 5, 1903. 

VII B 2. Where certain carabaos were killed during the Philippine 
insurrection by American troops, held that if they were destroyed as 
a matter of military necessity, as authorized by paragraph 15 of 
General Orders 100, Adjutant General's Office, 1863, the United States 
would not be liable to the owners of the animals, nor would the United 
States be liable if the animals were destroyed without authority by 
individual soldiers of the United States, as the United States is not 
liable for the torts of its officers or agents. The foregomg principles 
would apply whether the owners of the anunals were in sympathy 
with the American cause or not, and also whether or not they had 
been persecuted because of theii* American sympathy. C. I84I8, 
Dec. 22, 1905. 

VII B 3. Where property is destroyed under paragraph 15 of 
General Orders 100, Adjutant GeneraFs Office, 1863, which provides 
that "Military necessity * * * allows of all destruction of prop- 
erty, * * * of the appropriation of whatever an enemy's country 
affords necessaiy for the subsistence and safety of the Army; it makes 
no difference where the title to destroyed property lies, whether in a 
national of the belligerent who destroys,^ of in the enemy, or in a 

» See Juragua Iron Co. v. U. S., 212 U. S. 297. 



CLAIMS VIT B 4. 251 

neutral (within the zone of operations), and no compensation is due 
the owner, and any compensation that may be given for such losses 
is entirely of bounty. But under paragraph 38 of the above order, 
which provides that "private property, unless forfeited by crimes or 
by offenses of the owner, can be seized only by way of military neces- 
sity for the support or other benefit of the Army or of the United 
States," and which applies to property taken for the support of the 
Army, or for the furtherance oi its operations, compensation for pri- 
vate property taken is usually paid tne owner. Paragraph 38, how- 
ever, does not apply to cases of looting by soldiers. C. 16527, Nov, 
12, 1904; 16526, Apr. 17, 1906. 

VII B 4. During the Philippine insurrection the public market in a 
town was burned by order of the commanding officer as a military 
measure. The fire accidently spread to houses adjoining the market 
which were not intended to be burned, and they were consumed by 
the fire. Claims were filed for the value of the property burned in the 
market, and also for the houses and other property burned outside of 
the market. Held that the United States was not liable for the loss 
of property in the market, as the burning was done as an act of mili- 
tary necessity as authorized by paragraph 15 of General Orders 100, 
Adjutant General's Office, 1863; and that as to the property outside 
of the market the United States would not be liable, as the setting fire 
to the market place was a lawful act, and the burning of the houses in 
question was the result of an accidental spreading of the fire without 
negligence on the part of anyone. C. 14972, July 22, 1903. 

VII B 5. A Spanish vessel was captured by the Army in 1898 in the 
harbor of Ponce, Porto Rico, at the time of the landing of the United 
States troops at that place, and was detained and used by the United 
States military authorities. The captain of the vessel subsequently 
made claim for damages on account of such detention and use. Held, 
that the claimant was not legally entitled to compensation for the 
seizure, use, and detention of, or for damages to, the vessel, as it was 
private property belonging to the enemy and seized in a hostile 
country by way of military necessity for the benefit of the Army of 
the United States.^ C. 6O46, Mar. 18, 1899; III43, Oct. 5, 1901. 
Held also that the instructions of the President in regard to the method 
of carrjdng on the war, directing that receipts be given for private 
property taken for the use of the Army, that the property be paid for, 
and that means of transportation, though they may be seized by 
the military authorities, yet unless destroyed under military necessity 
shall not be retained, were directions to the officers charged with their 
execution and do not give rise to contractual rights against the United 
States in behalf of the owners of private property of the enemy seized or 
dealt with contrary to such instructions, and that the United States 
would not be liable to compensate the owner for the use and detention 
of such a vessel .2 C. III43, Dec. 23, 1901. 

' See 11 Op. Atty. Gen., 378; U. S. v. Pacific R. R. Co., 120 U. S., 227. 

2 See Herrera v. U. S., 43 Ct. Cls. 430; 222 U. S. 558; Diaz v. U. S., 43 Ct. Cls. 
444. As to the effect of the President's proclamation referred to in the above para- 
graph, the Supreme Court in the latter case said: "It is not possible to hold that the 
proclamation of the President was intended to supersede the laws of war and attach 
to every appropriation by the military officers conducting operations of war the 
obligations and remedies of contracts. It could not have been the intention of the 
President to prevent the seizure of property when necessary for military uses, or to 
prevent its confiscation or destruction.'* See, also, Magoon's Reports on the Law of 
Civil Government under Military Occupation, page 615. 



252 CLAIMS VII B 6. 

VII B 6, During the operation of the British, German, Russian, and 
American troops in China during the Boxer rebellion of 1900 the 
railroad running between Tientsin and Peking was taken possession 
of as a military necessity by the military authorities. The road was 
not taken possession of by the several military commanders acting 
jointly, but was alternately seized by the Russian, German, and British 
military authorities. While in possession of these authorities the 
road was used for transportation j^urposes by the military authorities 
of the United States, and for this service claim was filed by the mili- 
tary representatives of these several armies with the commander of 
the United States forces. Held that there could be no doubt of the 
right of a belligerent to take forcible possession of a railroad or other 
means of transportation and to use the same in liis military operations, 
and that the same right would exist where several powers were operat- 
ing against a common enemy, although the powers so operating may 
not have been formally allied. Held, further, that as, wdien the forces 
of several States are operating against a common enemy, one may 
furnish the other with military assistance in the way of arms, mili- 
tary supplies, transportation, medical aid, etc., and as the property 
rights of the corporation owning and operating the railroad should 
be considered as, for the time being, vested in the State whose mili- 
tary representatives took forcible possession of the railroad as a 
military necessity, the transportation furnished over the road in 
question should be considered as furnished by the State whose 
military representatives were in charge of the road at the time, and 
reimbursement for such service should be made by the United States 
to such military representatives. If a charge is to be made for 
transportation services rendered in favor of the United States the 
practice should be reciprocal, and in passing on such claims the United 
States should take credit by way of a set-off for similar services 
rendered the State whose military representative filed the claim. 
C. 11107, Aug. 19, 1901. . . , . 

VII C 1. During the Philippine insurrection a municipal building in 
the Phihppine Islands was occupied by United States troops and while 
in their possession was burned through the negligence oi the troops; 
Jield, that as the building was public property there was no implied 
obligation to pay rent, and that as the United States was not liable 
for the torts of its agents it would not be liable for the burning of the 
building. C. 15318, May 7, 1906; 26626,.Apr. 30, 1910. 

VII C 2. The determination of whether the owners of property 
occupied during the Phili])pine insurrection should receive compensa- 
tion for its use must depend upon the circumstances of each case. 
Where property is used in the actual train of war, as for a stronghold 
or a fort, or for the preparation of defenses no compensation is due, 
but where houses, for instance, are occupied in a semipermanent way 
for quarters or storehouses compensation is paid as on an implied 
contract. C. 16545, May 1, 1906. 

VII C 3. Upon the occupation of Manila in August, 1898, the 
militaiy authorities leased from a native certain premises, which the 
United States continued to occupy until April, 1901. On the out- 
break of the insurrection on February 4, 1899, the owner of the 
premises allied himself with the insurrection. The owner was 
arrested by the military authorities in January, 1901, as a member 
of an insurgent committee and took the oath of allegiance to the 



CLAIMS VII C 4. 253 

United States January 13, 1901. Held, that the lease between the 
owner and the United States was abrogated by the action of the 
owner in taking part in an insurrection against the lawful authority 
of the United States, and that while the owner continued as an 
insurgent the United States was entitled to the free use of the prem- 
ises as abandoned property belonging to a public enemy; and that 
upon the taking of the oath of allegiance an implied contract to 
pay a reasonable rent arose in regard to the premises. C. lJf.994, 
July 28, 1903. 

VII C 4. Where in time of war a building was occupied under an 
implied lease by United States Army officers, held, that the fact that 
the building was burned by enemies of the United States because 
it was occupied by American officers and because the owners were 
supposed to be friendly to the United States does not make the 
United States liable to reimburse the owner for the value of the 
building. C. 11739, Sept. 4, 1902. 

VII D. Where certain cotton was accidentally destroyed by fire 
resulting from an explosion of powder and ammunition during the 
possession, by the United States military forces, of Mobile, Ala., in 
1865, Jield, that the owner was without legal claim against the United 
States. For injuries to, or destruction of, personal property, inci- 
dental to legitimate military operations in war, the Government is 
not responsible,^ and the ssttlement of such claims arising during 
the Civil War was specially inhibited by the act of February 21, 1867 
(14 Stat. 397). R. 55, 328, Jan. 20, 1888. So JieU, where a 
wounded and convalescent soldier was on military duty rendering 
clerical services at the time Chambersburg, Pa., was burned, and in 
consequence lost personal property valued at $300. C. 11181, Sept. 
12, 1901. 

Where a claim was made by the owner for damage to a dwell- 
ing house "by a shell fired from an American warship on or 
about the 5th of July, 1898, during the bombardment" of San- 
tiago, held, that the United States was not legally liable for the 
claim.^ C. 5619, Jan. 5, 1899. 

VII E. During the Pliilippine insurrection the commanding officer 
of a certain town had the schoolhouse belonging to the town torn 
down and the stones used to repair the town road. After the reestab- 
lishment of civil government the town filed a claim agamst the United 
States for the value of the schoolhouse. Held that during the period 
of military government the civil administration was in military hands 
and that officers of the Army exercised the dual functions of military 
officers and civil administrators, and that as the repair of roads in 
the Philippines was a charge against Philippine funds, the action of 
the commanding officer in tearing down the schoolhouse and repair- 
ing the road was done in his capacity as a civil administrator. When 
the military government ceased its successor was the Philippine civil 
government and not the United States, and therefore any claim for 
the value of the schoolhouse should be made against the Philippine 
government and not against the United States. C. 19575, May 8, 
1906. So held where a stone wall belonging to a private person was 
torn down by orders of the commanding officer during the Philippine 

^ See U. S. V. Pacific R. R., 120 U. S., 227, and authorities cited. 



254 CLAIMS VII F. 

insurrection, and the material used to revet the bank of a river to 
prevent the flooding of the town. G. 15126, May 3, 1906. 

VII F, During the Philippine insurrection a steam launch was cap- 
tured by the Army in enemy territory and was appropriated to the 
use of the Army. After the insurrection the former owner demanded 
return of the launch. Held that the launch did not constitute a mar- 
itime capture, and that upon its capture the ownership passed to the 
United States, and there was no authority to return the property 
except by authority of Congress.^ G. USOl, June 19, 1903; 15693, 
Jan. 26, 1901^. 

VII G. Claims for property taken from loyal citizens for the wse 
of the Union army duruig the Civil War were taken cognizance of by 
the Southern Claims Commission; but this commission by the act of 
June 15, 1878 (20 Stat. 566), was brought to an end March 10, 1880. 
Such claims, except in certain special cases, were excluded from the 
jurisdiction of the Court of Claims, and the general statute of six 
years' limitation would exclude from its jurisdiction any such claims 
accruing at dates prior to that period; nor has the Secretaiy of War 
authority to allow such claims. The only means of relief which could 
now be afforded in such cases would be by express legislation of Con- 
gress.2 P. 61, 468, Oct. 3, 1893; G. 2764, Nov. 27, 1896. 

VIII. A bill for medical service incurred by an officer or soldier 
while in a status of leave of absence or furlough — as distinct from a 
pass for not exceeding 24 hours— (C. 24393, Feb. 19, and Dec. 21, 1909, 
and Jan. 6, 1910); or while in a status of absence without leave 
(G. 12124, Mar. 15, 1902; 13421, Oct. 10, 1902; 24393, Dec. 21, 1909) 
is a private indebtedness of the soldier, and not an obligation of the 
Government, for the reason that the officer or soldier is not in a duty 

» Lamar v. Browne, 92 U. S., 187. 

2 See section 1059, Rev. St., and the act of Mar. 3, 1887 (24 Stat., 505). The follow- 
ing acts have been passed for the relief of those who have suffered losses in consequence 
of war: The act of Mar. 12, 1863 (12 Stat., 820), known as the "captured and abandoned 
property act." The act of July 4, 1864 (13 Stat., 381), as amended by the act of Feb. 
21, 1867(14 Stat.,397),providesfor the payment of claims of loyal citizens in States not 
in rebellion, for quartermasters' and suljsistence stores taken and actually used in the 
Army during the Civil War. Section 2 of the act of Mar. 3, 1871 (16 Stat., 524), makes 
similar provision in regard to claims of loyal citizens in States in insurrection. The 
act of Feb. 27, 1902 (32 Stat., 43), as amended by the act of May 30, 1908 (35 Stat., 499), 
provides for the relief of those who had their horses, side arms, and baggage taken from 
them by Federal troops at and after the surrender at Appomattox, in violation of the 
terms of the surrender. See, also, 16 Stat., 678; 18 id., 604; 23 id., 12; 25 id., 1188, 
1189, 1312; 27 id., 744; 28 id., 1039; 30 id., 1401; 32 id., 2345; see, also, 33 Congres- 
sional Record, 3516, pt. 4. The act of May 27, 1902 (32 Stat., 234), provideafor the 
payment of certain sums of money to churches and colleges which were occupied and 
damaged by the military forces of the United States during the Civil War. Theact 
of Mar. 2, 1901 (31 Stat., 877), provides for a Spanish Claims Commission to carry into 
effect the stipulations of art. 7 of the treaty between the United States and Spain 
of Dec. 10, 1898, relative to the claims of American citizens growing out of the 
Spanish War. Theact of Mar. 26, 1908 (35 Stat., 1227), provides for the payment of the 
claims of the Roman Catholic Church in the Philippine Islands for damages by the 
troops of the United States. The act of Apr. 21, 1910 (36 Stat., 1697), provides for the 

?ayment of the claims of certain religious orders of the Roman Catholic Church in the 
hilippine Islands, for the use and occupation of property by the military forces of 
the United States. Acts have also been passed to reimburse the several States and 
Territories for expenses incurred by them in connection with the Civil War and the 
Spanish War. 



CLAIMS IX. 255 

status at such times, ^ An officer absent by verbal permit for not 
exceeding 24 hours, or a soldier absent on pass for not exceeding 24 
hours, is considered to be in a duty status, and a bill for medical 
services properly incurred while in such status is not a private indebt- 
edness but an obligation of the Government to be paid out of the 
proper appropriation. C. 20974, Jcin. 2^, 1907, and Nov. 21, 1908; 
24393, May 28 and Oct. 3, 1910. If a soldier, while absent on pass 
for not exceeding 24 hours and therefore in a status of duty becomes 
insane, not the result of his own misconduct, and absents himself 
without authority, the insanity so occurring while in a status of duty 
will prevent the absence from becoming a military offense, the 
soldier will be considered as continuing to be in a duty status within 
the meaning of paragraph 1493, Army Regulations (1498 of 1910), 
and a bill for medical services properly incurred while so absent 
without authority is not a private indebtedness of the soldier, but is 
an obligation of the Government. C. 24393, Dec. 21, 1909, and May 
28, 1910. Where a soldier is injured while playing football, the 
soldier being absent from his station with authority as a member of 
the post football team, bills for medical service in connection with 
this injury are an obligation against the Government under para- 
graph 149^3, Army Regulations (1498 of 1910). C. 24398, Feb. 13, 
1909. If a soldier while absent without leave or in desertion, is taken 
into a hospital at the request of proper military authority he should 
be regarded while in hospital as in constructive military custody and 
bills for medical attendance from that moment are an obligation 
against the Government under an act appropriating for "medical 
care and treatment of officers and enhsted men on duty, and prisoners 
of war and other persons in military custod}?" or confinement." 
C. I6642, July 25, 1904. 

IX. Where a soldier, sick in a military hospital, turned over to the 
ward master his money for safe-keeping vnih. the knowledge of the 
commanding officer of the hospital, and the money was stolen by 
the ward master; held, the United States could not be held for the 
loss. C. 6269, Apr. 20, 1902; 15157, Aug. 27, 1903. So, held, 
where jewelry and money of a soldier was taken possession of by his 
company commander when the soldier was placed in confinement, 
and was not returned to the soldier. C. 18292, July 14, 1905. So, 
held, also, where the clothing of a military convict in the United State 
military prison was for his convenience stored according to prison 
regulations, and the clothing was destroyed by fire. 0. 25692, Oct. 
23, 1909. So, held, where the clothing of a patient in a military 
hospital was stolen, and it had been recommended that the stolen 
articles be replaced by the Quartermaster's Department. C. 15157, 
'Dec. 14, 1906. So, held, where a sum of money was deposited in the 
company safe while a soldier was sick and was afterwards forwarded 
to him and lost in the mail. C. 12621, May 28, 1902. 

^ Seepar.1498, A.R.,1910: VComp. Dec, 363; also, unpublished decisions of Comp- 
troller of Treasury of Sept. 11 and Oct. 1, 1907, filed with documents belonging to 
C. 17860, Aug. 13 and 23, and Sept. 21, 1907, that a bill for medical services rendered 
a soldier absent with authority to enable him to attend as a witness before a civil 
court is a private indebtedness of the soldier, and not an obligation against the Govern- 
ment. 



256 CLAIMS X. 

X. Wliere a retired Army ofiicer desired, in a friendly and gratui- 
tous way, to help a discharged regular soldier to get the evidence 
necessary to support the ex-soldier's claim for a pension, held that a 
retired officer was an '^officer of the United States " within the meaning 
of section 5498, R. S., which provides that "every officer of tlie United 
States * * * who acts as an agent or attorney for prose- 
cuting any claim against the United States, or in any manner or by 
any means otherwise than in the discharge of his proper official 
duties, aids or assists in the prosecution or in support of any such 
claim," and makes such person subject to fine or imprisonment.^ 

C. 20254, Aug. 20, 1906. But where a retired post quartermaster 
sergeant solicited tlie claims of enlisted men for a 20 per cent increase 
in pay for foreign service, held that he was not an "officer of the 
United States or a person holding a place of trust or profit or dis- 
charging any function under or in connection with any executive 
department" within the meaning of section 5498, R. S. C. 18202, 
June 29, 1905. 

An officer proposing to bring suit in the Court of Claims, under 
section 1059, R. S., for the amount of certain subsistence funds, for 
which he had been made responsible through the dereliction of a com- 
missary sergeant, applied to the Secretary of War to detail an officer 
of the Army to act as his attorney in the prosecution of the claim. 
Held, in view of the provisions of section 5498, R. S., that such detail 
could not lawfully be made.^ P. 35, 452, Oct. 15, 1889. 

XI. Paragraph 831, A. R., 1908,^ (838 of 1910), provides that ''no in- 
formation will be furnished by any person in the noilitary service which 
can be made the basis of a claim against the Government except it be 
given as the regulations prescribe to the proper officers of the War, 
Treasury, or Interior Departments or the Department of Justice," etc. 
Held that this paragraph applies to giving voluntary information and 
was not intended to prevent testimony from being given in the due and 
orderly administration of legal procedure by an officer or soldier of the 
Army, and that there was no objection to an officer or soldier testify- 
ing in a claim case or in any other action in which he was a material 
witness and could be compelled by due process of law to appear and 
testify. C. 7912, Apr. 7, 1900; 23462, June 16, 1908. But whUe of- 
ficers and employees of the Government are subject to summons as 
witnesses in private litigation the same as other citizens, they are not 
required to testify with regard to matters of public business if, in the 
opinion of the head of a department, the disclosure would injuriously 

1 See Flower et al. v. United States, 31 Ct. Cls., 35. 

2 See 16 Op. Atty. Gen., 478. 

3G. O. 163, W. D.., Sept. 21, 1906, provides that "The soliciting of pension or 
other claims against the United States on military reservations or at military posts, 
camps, or stations, including general hospitals, is hereby prohibited, and commanding 
officers will take measures effectually to prevent such soliciting within the limits of 
military reservations, posts, camps, stations, or hospitals under their command. Offi- 
cers or enlisted men who give information with a view to aiding persons in soliciting 
such claims will be brought to trial for violation of paragraph 831, A. R., as amended 
by G. O., No. 159, W. D., Sept. 15, 1906, and civilian employees who so offend will 
be discharged," and invites attention to sec. 5498, R. S., whichpunishes by fine or 
imprisonment "every officer of the United States, or person holding any placeof trust 
or profit," etc., "who acts as agent or attorney for prosecuting any claim against the 
United States, or in any manner or by any means, otherwise than in discharge of 
his proper official duties, aids or assists in the prosecution or support of any such 
claim," etc. 



CLAIMS XII A. 257 

affect the public interest.^ C. 7912, Feb. 8, 1910. Held also that the 
furnishing of information as to the injury of an employee making 
claim against the Government under the act of May 30, 1908 (35 Stat. 
556), granting to certain employees of the United States the right to 
receive from it compensation for injuries sustained in the course of 
their employment, the information being furnished in accordance 
with the regulations adopted by the Secretary of Commerce and 
Labor, is not within the operation of the above paragraph of the 
regulations. C. 23069, Apr. 30, 1910. 

XII A. Held that the provision of section 3480, R. S., making it 
unlawful to pay certain claims against the United States to persons 
who promoted, etc., the late rebellion, created a personal disability 
only, which could not operate against the heirs of parties thus dis- 
qualified unless they too participated in the rebellion. R. 39, It-ll , 
Feb. 7, 1878. 

XII B. At the time of the San Francisco earthquake a private 
steamer was used for several days in connection with the reUer work, 
the master during that time receiving orders from several Army 
and Navy officers. A claim was made against the United States 
for compensation for the use of the vessel. Held, that the use of the 
vessel did not benefit in any way the Army or Navy, and that the 
orders given by the Army and Navy officers were given in their 
capacity as rehef agents and not as representing the United States, 
and the United States would not be Uable to the owners. C. 20652, 
Mar. 4, and Apr. 2, 1907. 

XII C. A claim was made against the United States by an attorney 
for services rendered as counsel for an accused officer in a court- 
martial trial. Held, that the claim was without merit as against the 
United States, and that the Government had nothing whatever to do 
with its payment. P. 32, 166, May 2, 1899. 

XII D. Wliere a claim was made for compensation ror time, cost, 
and expenses incurred in going from Brooklyn, N. Y., to Governors 
Island, N. Y., to collect fees due a civilian witness before a court- 
martial, Tield that there was no provision of law fo^^ the payment of 
such a claim. C. 1807, Nov. 2, 1895. 

XII E. A soldier, though become by discharge a civilian, has no 
claim against the United States for pay, in the nature of damages, for 
a period during which, though imiocent in fact, he was detained 
awaiting trial for a military offense and action on the proceedings. P. 
42, 375, Aug. 23, 1890. So, where a civilian, arrested on reasonable 
grounds of suspicion that he was a deserter from the military service, 
was detained iii confinement at a military post till it was ascertained 
that he was not such, held that he had no legal claim for damages 
against the United States. P. 43, 145, Oct. 4, 1890. 

' Sec. 882, R. S., provides that: "Copies of any books, records, papers, or documents 
»in any of the executive departments, authenticated under the seals of such depart- 
ments, respectively, shall be admitted in evidence equally with the originals thereof." 
In reference to the above section of the Revised Statutes, the Secretary of War, in a 
circular of the War Department of 1887, directed that: "In submitting copies of papers 
for the attestation of the Secretary of War chiefs of bureaus will state whether the rule 
of the department on the subject has been complied with, viz : It is not deemed proper 
to intrust attested transcripts of the pul>lic records to private persons for use in con- 
troversies in which the United States has no real interest, except upon the certificate 
of the tribunals before which such controversies are to be decided that such transcripts 
of the public records are deemed essential to the ends of justice." 

93673°— 17 17 



258 CLAIMS XII F. 

XII F. There is no law authorizing the executive department of 
the Government to pay claims for damages on account of injuries 
received by persons employed in the construction of public buildings, 
or in river and harbor improvements, and in the absence of such a 
statute the executive department is without power to pay them.^ 
C. 366, Sept. 21, 1894; ^082, Feb. 2^, 1896. 

XII G. Section 1304, R. S., which requires that a deficiency charged 
against an officer, as in the present case, shall be deducted from his 
monthly pay, unless he shall show to the satisfaction of the Secretary 
of War that such deficiency was not occasioned by his fault, applies 
only to claims for relief from accountability on the part of actual 
officers of the Army, and can not be extended to a case of such a claim 
made by a person formerly in the Army but had long been a civilian. 
P. 60, 124, June 17, 1893; 65, 137, May 28, 1894. 

XII H. A certificate of pay, as due on a final statement, was errone- 
ously given by his commanding officer to a soldier, to whom there was 
in fact no pay due. The soldier indorsed the certificate for collection 
to a bank, by which it was indorsed for the same purpose to another 
bank. This bank presented it to a paymaster, who paid it. On dis- 
covery of the error, the amount was stopped against the paymaster. 
The second bank then refunded to him the sum paid, and made claim 
for it upon the War Department. Held that such bank had no legal 
claim upon the United States, but that its recourse was properly 
against the first bank. P. 35, 447, Oct. 15, 1889. 

XII I. A contract nurse who lost private property by the sinking 
of a United States hospital ship submitted a claim for the amount of 
the loss. Held, that such claims could not be paid without special 
authority from Congress. C. 5215, Nov. 4, 1898. 

XII J. Where in the course of the transportation by railroad, at 
Government expense, of an officer's allowance of personal baggage, 
the boxes containing the same were broken into and a portion of the 
property was stolen, lield, that the remedy of the officer was against 
the railroad company, not against the United States. The United 
States does not make itself an insurer in such a case ; nor can the officer 
require the United States to sue the company in damages, for this 
could be done only on the theory that the United States was responsi- 
ble to the officer for the value of property lost by no fault or negligence 
of its own. R. 49, 572, Dec. 24,^ 1885. 

XII K. There is no appropriation under the War Department 
from wliich the sender of a registered mail package lost while on board 
an Army transport can be paid. C. 18316, July 20, 1905. 

XII L. Where certain lands were leased for maneuver purposes 
and a claim was made for the cost of forage necessary to be fed to the 
stock of a lessor during the period of the maneuvers because the stock 
had to be kept off the pasture lands, held that such an expense was a 
necessary incident to the operation of the lease, as the lease would 
operate to deprive the lessor of the use and occupancy of the land 
during the period of maneuvers, and therefore the claim should be 
denied. C. 16525, Sept. 26, 1904. 

XII M. Section 1876, R. S., provides that "No head of a department 
shall employ an attorney or counsel at the expense of the United 
, . 1 

^ But since the above opinion was rendered the act of May 30, 1908 (35 Stat. 556), 
was enacted granting to certain employees of the United States the right to receive 
from it compensation for injuries sustained in the course of their employment. 



f 



CLAIMS XII N. 259 

States, but when in need of counsel or advice shall call upon the 
Department of Justice, the officers of which shall attend to the same." 
Section 365, K,. S., provides that no compensation shall be allowed 
to any person, besides the respective district attorneys, for services 
as attorney or counsel to the United States. Held that, in view of 
the prohibition of the above statutes, the Secretary of War had no 
authority to pay the claim of an attorney for legal services in con- 
nection with the purchase of land at Fort William McKinley, Manila, 
P. 1} C. 12154, Jan. 3, 1903. 

XII N. Where an attorney submitted to the War Department a 
claim for services rendered an enlisted man in a habeas corpus pro- 
ceeding, no notice of such employment having been previously given, 
it was held that the employment and payment of the attorney M^ere 
prohibited by sections 189 and 365, R. S., and, further, that in view 
of section 366, R. S., payment of the claim could not be made except 
by special act of Congress.^ C. 7256, Dec. 9, 1899. So held, also, 
where an attorney rendered services in connection with the recovery 
of property of the United States that had been stolen. C. 11458, 
Nov. 8, 1901. Also, where an attorney defended an officer before a 
civil court in a matter growing out of the discharge of his official 
duties. 0.14570, Apr. 29, 1903. 

XII O. The United States is not Kable for fees and expenses of a 
coroner in holding an inquest over a deceased soldier, and no officer 
of the Government is authorized to bind the Government for such 
services. C. 6341, May 1,1899. 

XII P. An executive official can not, of his own authority, appro- 
priate the money of the United States for the purpose of satisfying a 
claim. So held that the Secretary of War could have no authority to 
reimburse a claimant for the amount of a tax assessed upon him by the 
mihtary authorities during the war, and expended in the public ser- 
vice, whether or not the same was legally exacted, but that Congress 
must be applied to for the necessary action.^ R. 18, 668, March 16, 
1866. 

XII Q. Wliere a paymaster of the Army seeks to be relieved from 
liability for pubHc funds stolen when in his charge, he should credit 
himself in his account current with the amount, and this credit being 
disallowed at the Treasury, he mil have the recourse of an application 
for rehef to the Court of Claims under section 1059, R. S. It has 
been ruled by the Supreme Court * that, until the disbursing officer 
has been "held responsible" by the accounting officers, his right to 
have recourse to the Court of Claims does not accrue. P. 51, 4^9, 
Jan. 27, 1892. 

XII R. Where the personal property of an officer is stored in a Gov- 
ernment storehouse during his absence on duty, and while so stored 

' See VI Comp. Dec, 133, making a distinction between legal services and services 
rendered in preparing an abstract of title. 

2 See par. 1012, A. R., 1910. 

^ A claim, though deemed by the Secretary of War to be probably just, can not in 
general, in the absence of any appropriation for its payment, or other authority to 
allow the same, properly be entertained by him. And where to pass upon a claim 
must be clearly quite futile, a consideration of its merits will in general be out of 
place, and the claimant, without being heard thereon, will properly be referred to 
the department of the Covernment empowered by law to take specific action in his 
case. 

* U. S. V. Clarke, 96 U. S., 37. 



260 CLAIMS CLOTHING ALLOWANCE. 

is stolen, held that the Government is not hable for the loss. C. 6690, 
July 6, 1899; 15548, Nov. SO, 1903. So, held, also, where the lockers 
of certain enlisted men were stored on a military reservation during 
their absence on temporary duty and the contents were stolen. C. 
22715, Feb. 6, 1908. So, held, also, where the property of a mihtary 
convict was stored for his convenience on the reservation and was 
destroyed by fire. G. 25692, Oct. 23, 1909. 

XII S. Several years after a horse had been purchased by the 
Government a private person laid claim to it, alleging that the animal 
had been stolen from him and subsequently sold to the Government, 
held that if the claimant could establish his ownership of the horse he 
was entitled to it, since the vendor could grant no better title than 
he himself had, and recommended that if the claimant should attempt 
to replevy the animal, the person from whom the Government pur- 
chased should be advised of the action and called upon to defend the 
proceedings in order that in any subsequent suit by the United States 
against him for damages resulting from a breach of the warranty of 
title he would be concluded on the question of title by the suit. C. 
17433, Feb. 7, 1905. 

XII T. Held that a claim by an officer to be allowed extra compen- 
sation for services rendered by him as clerk to a general court-martial 
of which he was the junior member, was wholly without sanction in 
law or regulation. R. 22, 578, Feb. 4, 1867. 

CROSS REFERENCES. 

Assignment of. See Contracts XIV G. 

Captures in war See War I C 6 c (3) . 

Court reporter for service See Army I G 3 a (4) (a) [3]. 

Final statement — incorrect See Pay and allowances III B 6 a. 

Pay of deceased soldier See Militia XI Q. 

Reimhursement for, in case of judgment See Desertion V F 19. 
against apprehender of deserter. 

Settlement of See Army I B 1 b. 

Suspension of. See Discipline XII A 11 a. 

Unauthorized claim arising from joint en- See Militia VI B 2 1. 

campment. 
United States, for damage to arms issued to See Military instruction II B 2 d. 
colleges. 

CLEMENCY. 

Grounds for See Discipline XV F to G. 

Pardon VI. 
Recommendation by court See Discipline XII E 1 to 2. 

CLOTHING. 

Disposition of condemned See Militia IX D . 

Issues See PayandallowancesII A3a(4) to(5). 

Prisoners, issues to See Pay and allowances III C 1 d (1). 

Seizure of, after sale by soldier See Public property IX B 2. 

Sold to a State See Public property I A 4 a. 

Title to soldier's See Public property IX B 2. 

See Pay and allowances II A 3 a (4) (a). 

CLOTHING ALLOWANCE. 

1 

To general prisoners See Army I B 7 u. 

To soldiers See Pay and allowances II A 3 a to b. 



COAST ARTILLEP.Y COMMAND: SYNOPSIS. 261 

COAST ARTILLERY. 

See Army I G 2 b (1); (2). 

Enlistment of colored men See Enlistment I A 12. 

Of militia See Militia III D. 

COLLEGES. 

Bonds of. See Bonds IV to V. 

Furnishing arms to and military instruction 

at See Military instruction II B 1; 2. 

Militia company at See Militia III L. 

Retired officers instructors at See Retirement I K 3 to 4. 

COLLUSION. 

Among bidders See Contracts VI J 4. 

With bounty jumpers See Articles op War LXII D. 

With contractor See Articles op War LX A 2. 

With deserter See Desertion V F 14. 

COMMAND. 

I. ELIGIBILITY TO COMMAND. 

A. Is Conveyed by Rank Page ?6S 

1. In staff departments by presidential assignment. 
a. Detailed staff officers. 

B. Marine Oppicer Requires Presidential Assignment. 

C. By Chief or Assistant Chief op Constabulary Page 264 

n. JUNIOR CAN NOT COMMAND SENIOR. 

m. BY THE COMMANDER IN CHIEF. 

A. May Assume Direct Command. 

B. He Generally Delegates Command. 

C. May Detail Engineer Officers to Work Committed to the Inte- 

rior Department Page 265 

IV. BY DIVISION OR DEPARTMENT COMMANDER. 

A. Can Not Assign Marine Officer to Duty. 

B. Can Not Issue Travel Orders for Sanitary Inspector. 
V. BY COMMANDING OFFICER. 

A. Post Commander. 

1. Over officer. 

a. May relieve him from duty with an organization and assign 

him to another. 

b. May withdraw privilege of leaving post. 

c. Can not issue travel orders. 

d. May allow limits of command to officer under suspension. 

2. Over enlisted men. 

a. Can not prohibit soldier from marrying Page 266 

b. May forbid them to enter saloons, etc. 

c. Can require duty of soldier on bail. 

d. Responsibility for ordering to duty a soldier whom the surgeon 

has excused. 

e. Can not surrender private trust money of men of command. 

f. Should return to the owner money seized from a soldier which 

the latter has obtained unlawfully. 



262 COMMAND : SYNOPSIS. 

V. BY COMMANDING OFFICER— Continued. 

A. Post Commander — Continued. 

3. Over civilians. 

a. Can exclude them from reservation Page 267 

b. Should not allow post to become asylum for fugitives from 

justice. 

c. Arrest of civilian on post for commission of crime. 

(1) At Rock Island Arsenal. 

d. Removal from post. 

(1) At West Point, N. Y. 

(2) Can remove soldier's wife from post. 

e. Can not search private house for soldier's clothing without a 

warrant. 

f. As to fishing on the reservation Page 268 

g. Prosecution of civilians for cutting hay. 

4. Can not refer cases to general court-martial. 

5. Can not act as counsel for accused. 

6. Procedure in case of receipt of writ of habeas corpus. 

a. From Federal court. 

(1) Produces body. 

b. From State court. 

(1) Makes return Page 269 

(a) Resists attempt to discharge party Page 270 

(b) Rearrests prisoner if discharged. 

7. Procedure in case of death of officer or soldier. 

8. May furnish guardhouse accommodations for civilian prisoners on 

request. 

B. Transport Commander. 

1. May assign officer to duty on his return from leave. 

2. Duty when offense is committed on board. 

a. By person subject to Articles of War Page 271 

b. Against a civilian. 

c. By civilian against civilian on high seas. 

3. When United States and State warrants are presented. 

4. Transport quartermaster may command. 

5. Officer of constabulary may not command. 

C. Regimental Commander. 

1. Appoints. 

a. Regimental staff ofiicers Page 272 

b. Battalion staff oflScers. 

c. Noncommissioned ofiicers. 

2. Can not reduce company noncommissioned officers without recom- 

mendation of company commander. 
VI. COMPANY COMMANDER. 

A. Delegation of AuTHokiTY to Noncommissioned Officers. 

1. To make arrests. 

2. To hear requests or complaints Page 273 

B. Can Not Force Soldier to Deposit Money. 

C. Holding Soldier's Money in Trust. 
Vn. AN INDEPENDENT COMMANDER. 

A. May Issue Travel Order. 



COMMAND I A. 263 

I A. The terms ''rank" and "command" are neither convertible 
nor synonymous. Rank is created by law and is conferred by an 
exercise of the appointing power. It conveys eligibility merely to 
exercise command or control in the military service. Neither is rank 
office,-hui it may be an attribute or incident of office. Held that the 
power to exercise command or control is conferred in some cases by 
statute and in other cases is conferred or delegated by the President 
in his capacity as Commander in Chief of the constitutional military 
forces, a 17508, Feb. 15, 1905. 

I A 1. While all commissioned officers of the Army are assigned 
military rank by express operation of law, they are not all equally 
eligible to exercise military command. What are known as staii" 
officers exercise command, or, more properly speaking, control in 
their own departments only.^ They are expressly forbidden by law 
to exercise command in the line, but by the express order of the 
President and in virtue of a specific assignment they may exercise the 
functions of any command in the line of the Arm^ to which it may 
please the President to assign them. Held that it is within the au- 
thority of the President as theC^ommander in Chief of the constitutional 
military force to assign the Adjutant General of the Army to the 
command of the Department of the East, and that the latter after 
such assignment may legally exercise in such department such powers 
of command as the President may be pleased to delegate in appro- 
priate Executive orders to that eft'ect.^ C. 15253, Sept. 12, 1903. 

I A 1 a. Under recent legislation officers of the line ar,e detailed for 
a limited tenure to office in certain of the staff departments and on 
the General Staff. Held that during the incumbency by a line officer 
of office in the General Staff that his power to assume or exercise 
command in the line is in abeyance, and that for that reason such an 
officer can not assume command of a department in the event of its 
permanent commander being ordered to another field of duty in the 
military establishment. C. 23317, May 25, 1908. 

1 B. An officer of the Marine Corps was returning from the United 
States to Cuba, where the organization to which he belonged was on 
duty with the Army of Cuban Pacification. Held that he could not 
legally assume command of troops on board the transport without 
a direct assignment by the President to that effect. C. 2Jf.712, Apr. 2, 
1909. Similarly lield in the case of a Marine officer who had been 
detailed for service with the Army in Cuba, but who was traveling 

* Officers of the Engineer, Pay, and Medical Departments are expressly forbidden 
by law to exercise command in the line or in other corps or departments of the staff. 

2 Staff officers have been assigned to command in several instances. Thus (1) 
Maj. Gen. Alexander Hamilton, Inspector General, exercised command of the Army 
from 1798 to 1800; (2) Brig. Gen. Zebulon M. Pike, Adjutant General, was in command 
of a brigade when killed, Apr. 27, 1813; (3) Brvt. Maj. Gen. Thomas S. Jesup, Quar- 
termaster General, was assigned to the command of troops in Florida, in General 
Orders, No. 32, A. G. O., May 20, 1836; (4) Col. J. K. F. Mansfield, Inspector General, 
was assigned to the command of the Department of Washington by General Orders, 
No. 12, War Dept., A. G. O., Apr. 27, 1861; (5) Maj. Gen. H. C. Corbin, Adjutant 
General, was detailed as a member of the General Staff in General Orders, No. 88, 
Hdqrs. of the Army, A. G. O., June 20, 1903, and as Assistant to the Chief of Staff by 
General Orders, No. 2, War Dept., Aug. 15, 1903. He was relieved from duty on the 
General Staff by par. 16, Special Orders, No. 41, War Dept., Oct. 2, 1903, and assigned 
by the President to the command of the Division of the Atlantic by General Orders, 
No. 65, War Dept., Dec. 22, 1903; relieved from the command of the Division of the 
Atlantic and assigned to the command of the Philippines Division by General Orders, 
No. 106, War Dept., June 16, 1904. 



264 COMMAND I C. 

without troops and under orders that did not contemplate any exer- 
cise of niiHtary command on liis part. G. 25586, Sevt. 25, 1909. 

I C. The office of assistant chief of Philippine CTonstabulaiy is a 
civil office to wliich militaiy rank attaches by ojieration of law, and 
the rank so attached is in no way necessary to or involved in the 
exercise of the functions of the office of assistant chief of constabu- 
lary, which was purely civil in their nature, and must, I think, be 
regarded as having been authorized by Congress for the purpose of 
determining the pay and emoluments of the incumbent. It will, 
I think, also appear that the measure of the command which may be 
exercised by a detailed incumbent of such office is set forth in the act 
of Januaiy 30, 1903 (32 Stat., 783). The first section of the act 
expressly authorizes the detail of officere of the Army^^for service 
as cliief and assistant cliiefs of the Pliilippine Constabulaiy"; but, 
as the offices named are civil offices, service in that capacity is civil, 
as distinguished from militaiy service, and the status occupied by 
such chief or assistant chiefs is a civil status to which, in confoiinity 
to the requirements of the section last above cited, a limited power 
to exercise militaiy command attaches. From the definitions already 
given of "rank" and "command" it has been seen that the mere 
possession of military rank does not authorize its possessor to exer- 
cise military command. The officer in charge of public buildings 
and grounds in Wasliington, for example, is clothed with the rank 
of colonel in virtue of the legislative grant of rank which is embodied 
in the act of March 3, 1873 (17 Stat., 535), but he can exercise no com- 
mand in the line or control in the staff in virtue of the attribution 
of rank which is attached to his incumbency of that office. In a 
precisely similar manner the rank of colonel attaches by operation 

of law to the office held by Col. S as assistant chief of the 

Philippine Constabulary, but mere attribution of rank conveys no 
right to exercise military command, which must be sought in a special 
assignment bv the President or in an appropriate enactment of 
Congress; ana such a grant of power to exercise military command 
will, in fact, be found in section 2 of the act of January 30, 1903. 
0. 17508, Feb. 15, 1905. 

II. The power to command can only be delegated to a senior to be 
exercised over liis juniors in rank. This follows from the fact that the 
organization prescribed by Congress provides for grades of rank and, in 
its rules for the government of the land forces, that body prescribes a 
system of subordination in accordance therewith. In the rules so 
prescribed, obedience to superiors is made the foundation of all dis- 
cipline, and the specific article which enjoins obedience makes the 
crime of disobedience of orders a capital offense. Command, there- 
fore, whether exercised directly or in delegation, must be exercised 
in accordance with the legislation of Congress in respect to rank and 
subordinarion in the militaiy service. 0. 15253, Sept. 12, 1903; 26612, 
Apr. 6, 1910, and May 13, 1910. 

Ill A. The President may, as Commander in Cliief, assume direct 
command of troops in the field when liis discretion dictates that to be 
necessaiy in the pubfic interest.^ C. 8383, May 26, 1900. 

Ill B. The power of the President to command not only can but, 
in a majority of cases, must be made the subject of delegation; the 

• During the whisky insurrection of 1794 in Pennsylvania, President Washington 
assumed command of the Federal troops in person. 



COMMAND III C. 265 

President can not be personally present in every theater of militaiy 
activity or at every point where military forces are stationed, and this 
fact is recognized by Congress in its legislation providing a special 
class of officers, of the grade of major and brigadier general, wlio do 
not form a part either of the line or staff, but are maintained for the 
express purpose of exercising such commands in the mihtary estab- 
lishment as may be delegated to them by the President. C. 16253, 
Sept. 12, 1903. 

III C, Wlien the detail of officers of the Engineer Corps was 
desired in connection with engineering questions, committed to the 
Interior Department for execution, Jield that under the authority 
conferred by section 1158, R. S., the President would be authorized 
to make the detail.^ C. 26574, Av^- ^^y ^^^0. 

IV A. A department or division commander is without authority 
to assign an officer or enlisted man of the Marine Corps to duty on 
shore or on an Army transport, as such an assignment can only be 
made by the President. C. 24362, July 21, 1909; 25586, Sept. 17, 
1909. 

IV B. Held that in view of the act of August 6, 1894 (28 Stat. 235), 
division commanders may not legally issue orders to sanitary inspec- 
tors (medical officers), of their command directing such sanitary 
inspectors to make inspections or investigations involving travel 
and claims for mileage. C. 28833, Aug. 14,1911. 

V A 1 a. On the question of whether a post commander has authority 
under the regulations and approved customs of the service to relieve 
an officer (not of his own regiment) from command of the company to 
which he is regularly assigned and attach him to duty with another 
company that is provided with an officer, held that a post com- 
mander has such authority. C. 26140, June 2, 1910. 

V A 1 b. Leaving the fimits of the station at wliich an officer is on 
duty is a privilege and not a right, the privilege being accorded by 
the commanding officer. Held, therefore, that a post commander may 
withdraw from an officer under his command the privilege of leaving 
the post without regard to whether or not the officer is under charges or 
in arrest, or under sentence. C. 26140, June 2, 1910. Held, that an 
order by a post commander to the effect that any officer whose 
explanation of an absence from a roll call was not satisfactory would 
be restricted to the limits of the post, except when permitted to 
absent himself upon a written apphcation for such absence approved 
by such commander, was a legal order, R. 55, 391, Mar., 1888. 

V A 1 c. An officer of the Army was ordered by Iris post commander 
to visit another post to observe the operation of apparatus for the 
incineration of onal. Held, that while a post commander can not, 
unaided by superior authority, order travel involving the payment 
of mileage, he may, in an appropriate case, order an officer of his 
command on detached service for such a purpose. C. 19087, Jan. 
22, 1906. 

V A 1 d. A sentence of suspension from duty and pay for 15 days 
does not irnply confinement to quarters, or involve a condition of 
arrest. It is customary for an officer undergoing sentence of suspen- 
sion from pay and duty to be allowed the limits of his command. 
R. 7, 242, Feb., 1864. 

> See 28 Op. Atty. Geu., 270. 



266 COMMAND V A 2 a. 

V A 2 a. A military commander, authorized to grant or refuse 
passes or furloughs to his command, may of course refuse permission 
to leave the post to a soldier whose purpose is to become married. 
A commander may also, if the interests of discipline require it, exclude 
the wives of soldiers from a post under his command at which their 
husbands are serving. But while the Army Regulations forbid the 
enlisting (in time of peace, without special authority) of married men, 
there is no statute or regulation forbidding the contracting of marriage 
by soldiers, any more than by officers, while in the service. So 
Tield that, under existing law, a military commander could have no 
authority to prohibit soldiers, while under his command, from 
marrying; and that the contracting of marriage by a soldier (although 
his commander had forbidden him, or refused him permission, to 
marry) could not properly be held to constitute a military offense. 
Where indeed there is involved in the conduct of the soldier at the 
time any military neglect of duty or disorder, he may, for this indeed, 
be brought to trial, but not for the marrying as such. And remarked 
that if the marrying by soldiers after enlistment becomes so generally 
practiced as to De demoralizing to the Army or otherwise prejudicial 
to discipline, the evil can effectually be repressed only through new 
legislation by Congress. B. 38, 47, Apr., 1876, 407, Jan., 1877; 
43, 109, Bee, 1879. 

V A 2 b. Wliere a post commander issued an order allowing the 
soldiers of his command between certain hours, when "off duty," 
limits extending one mile beyond the military reservation, and 
forbidding them to enter or patronize within said limits gambling 
houses, saloons, etc., held that he did not exceed his authority in the 
matter. C. 1210, Apr., 1895. 

V A 2 c. A soldier, arrested by the civil authorities and released 
on bail to await trial, may, on returning to his station, be required 
to perform the usual military duty appropriate to his rank (tt. 24, 
279, Feb., 1867), and while on such duty, his pay status is unaffected. 
C. 1717, Sept., 1895. 

V A 2 d. Although the post commander may order to duty a 
soldier who has been excused from duty by the surgeon on account 
of sickness or disability, lield that if he does so he assumes the respon- 
sibility for any material injury that may thus result to the individual 
or the service, and if injury does in fact result, is amenable to trial 
for the mihtary offense involved. R. 43, 250, Mar., 1880. 

V A 2 8. A soldier was charged with the larceny of a certain sum 
of money in currency from the post trader's store. At his arrest a 
sum in currency of about the same amount, but not capable of iden- 
tification as the same money, was found on his person, and, being 
claimed by the trader, was turned over to him by the post commander. 
The soldier was then tried and acquitted. Held that the post com- 
mander should refund to the soldier the amount taken from him and 
improperly turned over to the trader. R. 50, 520, July, 1886. 

V A 2 f . One soldier obtained from another by false pretenses 
three $20 gold pieces. Upon being arrested for the offense the sum 
of about $49 in bills and silver was found upon his person. It 
appeared that the money obtained by false pretenses had been con- 
verted into money of other denominations and that the sum found 
upon the soldier at the time of his arrest was th^' unexpended balance. 
Tne soldier was tried and convicted of the offense. Held that the 



COMMAND V A 3 a. 267 

sum taken from him at the time of liis arrest should be returned to 
the other soldier from whom it had been obtained by false pretenses. 
a 23320, May 29, 1908. 

V A 3 a. A post commander can, in his discretion, exclude all 
persons other than those belonging to his post from post and res- 
ervation grounds, but should he admit everybody except one indi- 
vidual against whom no charge of wrongdoing existed, such action 
would be considered an abuse of discretion on the part of the post 
commander. C. 2682, Oct., 1896: 6101^, July 5, 1899, and Apr. 6, 1909; 
12941, July 16, 1902: 16272, May 6, 1904: 16983, Oct. 8, 1904: 21258, 
Apr. 18, 1907: 28974, Sept. 16, 1911. 

V A 3 b. A post commander can not properly allow his post to 
become an asylum for fugitives from civil justice. R. 36, 450, May, 
1875. 

V A 3 c. A civilian may legally be arrested without a warrant as 
well by a military person as by any citizen where he commits a felony, 
or crime in breach of the public peace, in such person's presence ; or 
where, a felony having been committed, such person has probable 
cause for believing that the party arrested is the felon. ^ In a case of 
such an arrest at a military post, the arresting officer or soldier should 
use no unnecessary violence, should disclose his official character, and 
inform the party of the cause of his arrest, and should deliver him as 
soon as reasonably practicable to a civil official authorized to hold 
and bring liim before a court or magistrate for disposition. P. 39, 51 , 
Feb., 1890; 41, 457, July, 1890; C. 10241, Apr. 15, 1901; 16983, 
Apr. 10, 1908; 25609, Nov. 8, 1909. 

V A 3 c (1). The State of Iowa has ceded to the Unites States exclu- 
sive jurisdiction over the portion of the Rock Island Arsenal Bridge 
and approaches situate within that State. In a case of a crime or 
offense against the United States committed by a civilian on such por- 
tion, held t\\SLt the commanding officer at the arsenal or his subordi- 
nates would be authorized to arrest the offender without warrant 
within limits authorized by law and cause him to be brought 
before a United States commissioner or other official specified 
in section 1014, R. S. He could not properly hold the party and 
notify the commissioner to send for him, but must himself have 
him taken before the commissioner. Where indeed no such official 
is accessible at the time, the commanding officer may hold the offender 
in the guardhouse, but only for such interval as may be necessary. 
P. 39, 51, Feb., 1890. 

V A 3 d (1). The superintendent of the Military Academy is not in 
general authorized to arrest and confine in the guardhouse a civiUan 
for a mere breach of the police regulations of the post or academy. 
His proper remedy is to have the offender removed as soon as prac- 
ticable, and without unnecessary force, from the reservation.^ P. 41, 
457, July, 1890; C. 6704, Feb. 25, 1909; 16983, Oct. 8, 1904; 28974, 
Sept. 16, 1911. 

V A 3 d (2) . Held that a post commander can legally order the 
removal of a soldier's wife from the post for sufficient cause. C. 
25177, July 14, 1909. 

V A 3 e. Although section 3748, R. S., makes the possession of 
articles of uniform clothing presumptive evidence of a sale; held that 

1 U. S. i'. Boyd, 45 Fed. Rep., 851, 866, Feb., 1890. 
23 Op. Atty." Geu., 271; 9 id., 106, 476. 



268 COMMAND V A 3 f . 

where there is reason to beheve that such clotliing is in possession of 
a citizen, a search warrant shouhl be obtained from the proper United 
States court. C. 5303, Nov. 22, 189S; 1027, Dec. 18, 1895; 16107, 
Apr. 4, 1904. 

V A 3 f . Held with respect to the right of citizens of New Jersey to 
fish on and along the shore of the mihtaiy reservation of Fort Hancock 
that in view of the cession of exclusive jurisdiction over the reserva- 
tion to the United States for mihtary purposes, the grant should be 
regarded as including the necessary easement in the shore and in the 
waters adjacent thereto required for the "free use and enjoyment" 
of the premises for military purposes; that the obligation to observe 
such easement should be regarded as binding on all citizens in so far 
as respects public rights claimed by them as members of the State, 
and that the post commander should therefore continue to exercise 
such control of the shore between high and low water mark as would 
prevent any occupation which would interfere with the proper 
military use of the reservation. C. 19657, Oct. 21, 1910. 

V A 3 g. Held that grass cut for hay upon a military reservation was 
in law, at least if not at once removed, personal property, so that a 
person wrongfully cutting such grass and allowing it to remain till it 
Decame hay or for any material period before asportation, was charge- 
able with a stealing of property of the United States under the act of 
March 3, 1875, c. 144, which makes such steahng a felony punishable 
by fine and imprisonment. P. 64, 270, 303, Mar. and Apr., 1894. 

V A 4. Where a general court-martial has been convened at a mili- 
tary post by the department commander, the commander of the post is 
not empowered, in the absence of authority from such superior, to refer 
cases to the court for trial. Such action has sometimes been taken 
and acquiesced in, but (unless specially authorized) it is irregular and 
a transcending of his province by the post commander. R. 41, 306, 
July, 1878. 

V A 5. Held that a regulation ^ providing for the detail by the 
commander of a post at which a general court-martial is ordered to 
sit, of a suitable officer of his command to act as counsel for prisoners 
to be arraigned, if requested by them, is not to be construed as sanc- 
tioning the detail or voluntary appearance of a post commander him- 
self in such capacity at his own post. P. 65,77, May, 1894. 

V A 6 a. In a case of a soldier or other person held in military cus- 
tody, in which a writ of habeas corpus is issued by the United States 
judiciary — a coordinate branch of the same sovereignty as that by 
which the party is restrained — it is the duty of the officer to whom 
the writ is addressed to make thereto a full return of the facts and to 
bring into court the body of such party, submitting to the court the 
whole question of authority and discharge, and abiding by its decision 
and order in the case. R. 19, 377, and 21, 157, Jan., 1866; C. I4O42, 
Sept. 23, 1904. 

V A 6 b. Independently, on the one hand, of any proclamation 
or act of the President, suspending the privilege of the writ, or, on 
the other hand, of any proclamation revoking a previous suspension, 
and on constitutional grounds alone, held that no court or judge of 
any State could in any instance be authorized to discharge, on habeas 
corpus, a person, military or civil, held in military custody by the 

» See par. 977 A. R., 1910. 



COMMAND V A 6 b. 269 

authority of the United States. R. 1992, Dec, 1865; 21, 92, and 133, 
Dec, 1865; 27, 50, Aug., 1868; C. 14495, Apr. 14, 1903. And held, 
particularly, in regard to soldiers arrested or confined by the military 
authorities under a charge of or sentence for desertion, — that theu" 
discharge, upon any ground, by writ of habeas corpus was wholly 
beyond the jurisdiction of any State tribunal. R. 2, 34, 190, 4^4, 
Feb. to June, 1863; 3, 104, June, 1863; 5, 398, Dec, 1863. So held, 
in regard to persons arrested by a provost marshal as deserters for not 
responding to a draft in time of war. R. 3, 457, 578, Aug. and Sept., 
1863. And further, held that no State court could have jurisdiction 
on a proceeding for the discharge by writ of habeas corpus of an 
enlisted soldier, to pass upon the question of the legality of the sol- 
dier's enlistment, or to discharge him from his contract of enlist- 
ment on the ground of its invalidity by reason of minority, non- 
consent of parent, or other cause; the authority to discharge from the 
restraint and obligation of the ordinary; military status being con- 
sidered to be governed by the same principle as that to discharge 
from an arrest or confinement under a military charge or sentence, or 
from the custody of a United States marshal under civil process of the 
United States.^ R. 21, 157, Jan., 1866; 29, I40, July, 1869; 33, 271, 
Aug., 1872; P. 32, 313, May, 1889; C. 394, Sept., 1894; 12069, Feb, 
17, 1902. 

V A 6 b (1). Where a writ of habeas corpus, issued by a State court 
or judge for the rehef of a person held in arrest, confinement, or under 
enlistment, by the military authorities, is served upon a mihtary 

1 Opposed to this view was the opinion of Atty. Gen. Stanbery in Gormley's case 
(Oct., 1867), 12 Op. Atty. Gen. 258. But in December, 1871, the ruling of the Judge 
Advocate General in this class of cases was sustained by the United States Supreme 
Com-t in Tarble's Case, 13 Wallace, 397, in which the judgment of a State court, which 
had ordered the discharge, on habeas corpus, of an enlisted soldier from "the custody 
of a recruiting officer," i. e. from the obligation of his contract of enlistment, on the 
ground that he had enlisted when imder eighteen years of age and without his father's 
consent, was reversed as an unconstitutional assumption of authority. In applying 
to the case the principle laid down in Ableman v. Booth, 21 Howard, 506, the court, 
by Field, J., observes: "State judges and State coiu-ts, authorized by laws of their 
States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any 
case where a party is alleged to be illegally confined within their limits, unless it 
appears upon his application that he is confined under the authority, or claim and color 
of the authority, of the United States, by an officer of that Government. If such fact 
appear upon the application the writ should be refused. If it do not appear the judge 
or court issuing the writ has a right to inquire into the cause of imprisonment, and 
ascertain by what authority the person is held within the limits of the State; ana it is 
the duty or the marshal, or other officer having (fustody of the prisoner, to give, bj^ a 
proper retm-n, information in this respect. His return should be suflScient, in its 
detail of facts, to show distinctly that the imprisonment is under the authority, or 
claim and color of the authority, of the United States, and to exclude the suspicion of 
imposition or oppression on his part. And the process or orders under which the 
prisoner is held should be produced with the return and submitted to inspection, in 
order that the coiu-t or judge issuing the writ may see that the prisoner is held by the 
officer in good faith, under the authority, or claim and color of the authority, of 
the United States, and not under the mere pretence of having such authority. * * * 
The State judge or State court should proceed no fm-ther when it appears, from the 
application of the party, or the retiu'n made, that the prisoner is held by an officer of 
the United States under what, in truth, purports to be the authority of the United 
States; that is, an authority, the validity of which is to be detei-mined by the Consti- 
tution and laws of the United States. If a party thus held be illegally imprisoned, it 
is for the courts or judicial officers of the United States, and those courts or officers 
alone, to grant him release." This decision put an end to a controversy of many years 
standing, and swept away a mass of counterrulings by the State courts, the majority of 
which had sustained the authority of the State judiciary in such cases. 



270 COMMAND V A 6 b. 

officer, he is not required to comply with the direction of the writ to 
produce before the court the body of the person so held. It is suffi- 
cient for him merely to make return showing clearly that such person 
is held by the authority of the United States as a deserter, or under a 
contract of enlistment, or otherwise, as the case may be. The State 
court, upon being thus apprised, will properly dismiss the writ. R. 3, 
104, J'^ne, 1863; 21, 157, Jan., 1866. 

V A 6 b (1) {a): Where, prior to the decision of the United States 
Supreme Court in Tarble's case, a State court, having issued a writ of 
Jiabeas corpus in a case of a military prisoner, attempted to enforce 
a process of contempt against the officer in charge, who, though duly 
making a return showing that the party was detamed by the authority 
of the United States, refused to produce his body in court, held that 
such attempt should be resisted by the officer, who should be sup- 
ported in his resistance by such military force as might be necessary. 
R. 3, 502, Aug., 1863; 19, 305, Dec, 1865; 21, 92, Dec, 1865. So, 
where a State' court, after such a return, still assumed to proceed in 
the case and to order the discharge of the party, here a soldier in 
arrest as a deserter, held that the execution of such order should be 
resisted and prevented by military force. R. 3, IO4, June, 1863; 
21, 157, Jan., 1866. 

V A 6 b (1) (&). Where, prior to the decision in Tarble's case, an 
officer undergoing, in a State penitentiary, a sentence duly imposed 
by a court-martial, was discharged from his imprisonment by a 
State court and was at large, advised that he be forthwith rearrested 
and reconfined. R. 30, 56, Dec, 1869. So, in a case of a soldier 
discharged from liis enlistment, on the ground of minority, by a State 
court, advised that he be arrested by the mihtary authorities and 
held to service. R. 30, 190, Mar., 1870; C. I4O42, Mar. 16, 1904. 

V A 7. Held that where officers and enlisted men or civilians 
resident thereon meet with death on reservations under circumstances 
which can present no question of violation of State laws, there is no 
necessity or propriety of any inquest at all beyond an investigation 
by a board of officers or court of inquiry; but where an individual of 
one of these classes dies at a place outside the reservation limits or 
within such limits, in each case, as a result of criminal acts committed 
upon him outside the reservation, the right of the coroner to conduct 
an inquest to determine the nature of death is plain, and, as a matter 
of comity, the post commander should interpose no obstacle to holding 
the inquest on the reservation or to the removal of the body from the 
reservation for tlie purpose of holding an inquest elsewhere. C. 20050, 
July 13, 1906. 

V A 8. Held that a commanding officer may in emergencies fur- 
nish guardhouse accommodations on the request of the civil authori- 
ties for the safe-keeping of civilian prisoners, provided that the men 
charged with the safe-keeping of the prisoners be furnished by the 
civil authorities, as there is no authority for the employment of troops 
for that purpose. C. 25768, Nov. 9, 1909. 

V B 1. An officer returning from leave on an Army transport may 
lawfully be placed on duty by the commanding officer of the troops on 
board, but while so engaged becomes entitled to the allowances accru- 
ing to officers on chity while traveling by sea. &. 24362, Jan. 19, 1909, 
and July 13, 1909. 



COMMAND V B 2 a. 271 

V B 2 a. Where an offense is committed on an Army transport by a 
person subject to the Articles of War, held that a mihtary prosecution 
should be initiated at once by the preparation of charges and specifica- 
tions and by notification to such person that military jurisdiction has 
attached. C. 5635, Oct. 31, 1910. 

V B 2 b. Where an offense is committed on an Army transport, but 
in the Territorial waters of a State or organized Territory of the United 
States, the injured party being a civilian, not a member of the ship's 
company, the offender will be surrendered upon the presentation of a 
warrant by the proper Federal, State, or Territorial authority, and the 
officer serving the same will receive the necessary assistance in execu- 
tion as provided in the fifty-ninth article of war. C. 5635, Oct. 31, 
1910, 

V B 2 c. When an offense amounting to a felony or a serious mis- 
demeanor is committed by one member of a transport company 
against another on the high seas, neither party being subject to the 
Articles of War, lield, that the offender wdl be confined and turned 
over to the proper United States court at the first port of entry, but 
if there be no court of the United States at such port of entry having 
jurisdiction over the offense committed the offender will be held in 
confinement on board the ship until a port is reached in which there 
is a court of the United States having jurisdiction over the offense 
committed. If, however, the offense be committed in the Territorial 
waters of a State or Territory, the prisoner will be turned over to the 
proper State or Territorial court if there be one having jurisdication 
over the offense. Should the offense be less serious, amounting to 
an infraction of the ship's discipline or a mere misdemeanor, reasonable 
disciphnary punishment may be imposed by the ship's master. 
C. 5636, Oct. 31, 1910. 

V B 3. If warrants from a United States court and from a State or 
Territorial court issue in the same case the commanding officer of a 
transport will surrender the offender to the officer whose service is first 
in point of time. Held, however, that no officer of the Army will under- 
taKe to pass upon the sufficiency of a warrant issued by a court of the 
United States or by a State or Territoiy, as such question is for judicial 
rather than executive determination." C. 5635, Oct. 31, 1910. 

V B 4. A transport quartermaster, not serving by detail as an 
officer of the Quartermaster's Department, succeeds to the command 
of troops on board such transport, in the operation of the one hundred 
and twenty-second article of war, if he is the senior officer of the line 
present; otherwise, however, if he has been detailed for service in the 
Quartermaster's Department, as in the operation of section 36 of the 
act of February 2, 1901 (31 Stat., 757), he becomes, for the time being, 
a staff officer, and as such is not entitled to exercise command in 
the operation of the one hundred and twenty-second article of war. 
C. 17508, Nov. 21, 1906. 

V B 5. A captain in the line of the Army, serving by appointment 
as assistant chief of the Philippines Constabulary, with the temporary 
rank of colonel, while entitled to the benefits and privileges which 
attach to military rank, is not entitled to assume, and may not law- 
fully be assigned to, the command of the troops on an Ai-my trans- 
port upon which he is traveling as a passenger; such a captain having 
the rank and pay of colonel in the operation of the act of January 30, 
1903 (32 Stat., 783), and not being a colonel in the line of the Army, 



272 COMMAND V c 1 a. 

his right to exercise command as such being measured by the require- 
ments of the act of January 30, 1903. C. 17508, Feb. 15, 1905. 

V C 1 a. The authority to ''appoint" regimental staff officers, con- 
ferred upon regimental commanders by the Army Regulations, is no 
part of tlie constitutional appointing power, but is merely an author- 
ity to select and detail. As such it may be regulated by orders from 
the War Department, where desirable to prevent its being so exer- 
cised as to prejudice the interests of the service. Thus, it is com- 
petent for the Secretary of War to direct by general order that such 
appointments shall not be dated back so as to take effect as of dates 
prior to those on which they were actually made, as also that appointees 
shall not become entitled to the additional pay for a period prior to 
their entering upon their duties.^ R. 41, 609, July, 1879; 1^.2, 567, 
Apr., 1880. 

V C 1 b. The Army Regulations confer upon battalion com- 
manders the right to recommend officers for appointment to vacancies 
in the battalion staff. The regimental commander is bound to con- 
sider these recommendations in making such appointments. Held, 
that such appointment is not a mere ratification of the act of a sub- 
ordinate. Held, also, that the regimental commander is not deprived, 
however, of all discretion in the matter. He may, for certain public 
reasons, disapprove a recommendation and require a new one to be 
submitted. The fact that the officer recommended is attached to 
another battalion will not of itself exclude him from the field of 
recommendation or appointment. C. 13292, Sept. 16, 1902; 9052, 
Nov. 23, 1906. 

V C 1 c. A regimental commander is not obliged by army regu- 
lations, to appoint to be sergeants or corporals of companies, the 
soldiers recommended to him for such appomtments by the company 
commanders. He is to be regarded as vested with a discretion in 
the matter, and though in the great majority of instances he will 
})roperly appoint as recommended, he may, and should, decline to 
appoint where he believes the nominee to be an unfit person. R. 27, 
159, Sept., 1868. 

V C 2. Held that a regimental commander is without authority 
to reduce a company noncommissioned officer without the recom- 
mendation of the company commander. C. 10056, Mar. 27, 1901. 

VI A 1 . The custom of the service for nearly a century has recog- 
nized the right of a company or detachment commander to delegate 
to a noncommissioned officer the right to confine an enlisted man or 
to place him in arrest in quarters where it is impossible to obtain 
the prior order of the company commander or other proper superior, 
provided the case be immediately reported to the proper commander, 
who, if the enlisted man is to remain in confinement or under arrest, 
must confirm the act of the noncommissioned officer and adopt it as 
his own. Held that the delegation of authority in this instance to 
noncommissioned officers is not based upon the positive grant of 
authority contained in the twenty-fourth article of war. C. 18878, 
Dec. 9, 1905. 

* See the subsequent G. O., 73, Ildqrs. of Army, 1879, in accordance with thia 
opinion. 



I 



COMMAND VI A 2. 273 

VI A 2. Extract from an indorsement of the Judge Advocate 
General, in submitting to the Secretary of War a communication 
(concurred in by the Judge Advocate General) from Brig. Gen. 
E. O. C. Ord, commanding Department of Texas. 

"Though I am aware of no law in terms prohibiting a company com- 
mander from delegating to a noncommissioned officer so important a 
part of his authority and duty as the entertaining in the first instance 
of the complaints and requests of the men of the company, I can but 
consider such a delegation to be at variance with the principle and 
system of our military organization. Further, such a practice, as it 
appears to me, must tend to render commissioned officers negligent 
and irresponsible, and noncommissioned officers arbitrary and over- 
bearing. Indeed I can conceive of nothing that would sooner spoil a 
good sergeant than to place him in a position to determine at his dis- 
cretion whether the complaints of his inferiors should be entertained 
by his superior, and to color them at will when transmitted. Thus, 
though the practice may, in some instances, have been found conven- 
ient and innocuous, its effect in general must, I think, be prejudicial to 
the best interests of the service." ^ R. 42, 273, May, 1879. 

VI B. Held that a company commander can not legally force a 
soldier to deposit with the paymaster, nor can he, without the 
soldier's consent, deposit private money of the soldier which is in the 
company commander's possession. R. 39, 471, Mar. 4, 1878. 

VI C. A soldier deposited with his company commander a sum of 
money for safe-keeping. Upon being relieved from duty the company 
commander, without the authority, expressed or implied, of the 
soldier, transferred the money to his successor in command. Held 
that the deposit of the money by the soldier with his company com-' 
mander constituted a bailment and probably something more than a 
gratuitous one. But considering the bailment as a gratuitous one 
only, the action of the bailee in delivering the money without authority 
to an unauthorized person, even though the dehvery was not with a 
wrongful intent, constituted a conversion of the funds, and the 
company commander to whom the money was delivered by the 
soldier would continue liable for the money. Held also that as the 
soldier was in the post at the time the company commander was 
relieved from duty, the action of the company commander in turning 
the money over to his successor was not a prudent act such as one 
in the exercise of reasonable care and precaution would have resorted 
to. C. 14332, Mar. 9, 1903. 

VII A. By an order of the President, of 1892, a special command, 
independently of any department commander, of all troops on 
escort duty with the International Boundary Commission, was 
devolved upon a lieutenant colonel of engineers. Held that his order, 
re(juiring travel on duty by an officer of the command, entitled such 
oflicer to the usual travel allowances, equally as would a similar order 
issued by a department commander. P. 57, 357, Jan., 1893. 

' Compare remarks of reviewing officer in G. C. M. 0., 26, Dept. of the Columbia, 1S79; 
do. 2, id., 1880. 

93673°— 17 18 



274 COMMAND COMMANDING GENERAL. 

CROSS REFERENCES. 

Authority to order a court See Articles of War LXXII A. 

Chief and assistant chief of Philippine Con- See Territories IV B 2 a. 
■stabulary. 

Commander in Chief See Army II I 2. 

General court-martial See Discipline IX N 2. 

General Staff. See Army I G 3 a (1) (a). 

Joint encampment See Articles of War CXXII B. 

Neglect to assume See Articles of War LXII D. 

Officer under sentence See Pardon XV D 1 . 

Potver to convene courts-martial See Discipline XV I 1. 

Eight to require officer to submit list of debts.. See Private Debts VII. 

Suspension from. , See Discipline XII B 3 f (3) (a). 

Transport See Articles of War CXXII A. 

COMMANDER IN CHIEF. 

See Army I A to B. 

Appointing power See Office II to IV; V A to B. 

Approval of sentence See Discipline XIV E 3. 

Assignment by to command See Command I a 1; III A to D. 

Can not a-eate office See Office II to III. 

Command by See Army II I 2. 

Convening authority See Discipline III B to C. 

Court of inquiry, ordered See Articles of War CXV A; B; CXIX 

A; B; CXXI A. 

Cuba, intervention in See War I C 8 c (1 ) to (2). 

Delegation of right to command See Command I A. 

Desertei-s dropped See Desertion XX D; E; F. 

Disbandment of Volunteer Army See Enlistment I B 2 e. 

Discharge by See Discharge XX A to F. 

Evidence of how taken See Discipline X D 1 . 

Examining board, action on See Retirement I B 6 e to g. 

Execution of the law See Army II B . 

Habeas corpus, stispension of See War I C 12 

Martial law See War I E 1 to 2. 

Medals of honor awarded by See Insignia of Merit I A to B. 

Military contribution ordered See War I C 6 f (1). 

Military reservations See Public Domain III F 3. 

Militia called forth See Militia I to II. 

Orders by See Communications I A 1. 

Pardon by See Articles of War, CXII A to E. 

Pardon I A; A 1; B 1; III to IV. 

Philippines, order in See Army II G 2 a; a (1). 

Receipts for property, directions as to See Claims VII B 5. 

Reduction of Army at end of war See Discharge IX A . 

Regulations by See Laws II A 1; 1 b; 1 f; g; g (1). 

Retiring board, action on See Retirement I B 3 to 4. 

Reviewing authority See Articles of War CVII A; CXI A. 

Discipline XIV H to I. 

Revocation of proclamation See War I C 12 a. 

Riots See Army II I to K. 

Summary dismissal of officer See Office IV E 2 to 3. 

Suspension of proclamation See War I E 1 e. 

Uniform of Army See Insignia of merit III B 1. 

Use of troops in Indian country See Army II C. 

Usury, control over See Articles of War LXII C 15. 

Volunteer Army, raising of See Volunteer Army I A. 

COMMANDING GENERAL. 

Martial law See War I E 1 c to d. 

Neutrality See Army II K to III. 

Riot See Army II J to K. 

War See War I C 8 a (2) to (3). 

War correspondents See War I G 1. 



COMMANDING OFFICES — COIMMUXICATIONS. 275 

COMMANDING OFFICER. 

See Command V to VI. 

See Articles of War LXV B. 

Arrest by See Discipline I D 1. 

Assault on See Articles of War XCVII A. 

Confinement of retired soldier by See Retirement II B 3 a; b. 

Counsel for accused See Discipline V G 3. 

Court of inquiry See Articles of War CX V A ; B ; CXIX 

A; B;CXXI A. 

Discharge by See Discharge XIV A 3. 

Disrespect to See Discipline II D 17 a. 

Duty in case of homicide See Articles of War CII H 1. 

Forwards charges See Discipline II G 1. 

Liquor: decides tvhether intoxicating See Intoxicants II B. 

Liquor: prevents introduction into Indian 

country See Intoxicants III C to D. 

Riot See Army II D. 

Squatters on reservation See Public property II B 3 a; III H to I. 

Subpcenas See Discipline X F 1 ; 2. 

Taxes: duty in connection with See Army I B 11. 

Uniform: duty to protect dignity of See Uniform I B 1 a. 

Waste products, abandoned property, etc.: 

disposition of See Public property I to II. 

Witnesses : See Discipline X D. 

Writ of replevin See Army II K 1 e (2). 

COMMISSARY SERGEANT. 
Appointment of. See Army I E 2 a. 

COMMISSION. 

Of officer See Discharge II A 1. 

To medical reserve officer See Army I G 3 d (3) (6) ; (c) [4]. 

COMMUNICATIONS. 

I. ORDERS. 

A. War Department. 

1. Are orders of the President Page 276 

B. Become Operative When? 

1. Rule of notice. 

a. General and special orders. 

2. At future designated time. Page 277 

C. Assigning Officer to Duty in Lieu of Another Relieves that Other. 

D. Nunc Pro Tunc Orders May Not be Issued. 
n. LETTERS, ETC. 

A. Penalty Envelopes. 

1. "Penalty for private use, $300, " sufficient Page 278 

2. May be used in discharge of official duty. 

a. May be inclosed for use with return official letter. 

b. Can not be inclosed for return of signed vouchera. 

3. May be used by recruiting officer. 

4. Used by State adjutants general. 
m. TELEGRAMS. 

A. Recommending Extension of Furlough May be Public Business. 
IV. CHANNELS. 

A. Military. (See Army Regulations.) 

B. Nonmilitary. 

1. Used to reach War Department Page 279 

2. Used in correspondence with congressional committee, ^ 



276 COMMUNICATIONS I A 1. 

I A 1. General or special orders relating to the Army, issued from 
the War Department by the Secretary of War or by his direction, 
are to be presumed to be made by the authority of the President, and 
to be viewed as his orders equally as if he had subscribed the same, 
R. 8, 297, Apr., I864. 

I B 1 . An order becomes operative, and a military person chargeable 
with notice of it, when it is shown that an order has been forwarded in 
the regular way to an officer's regiment, in which case it will be pre- 
sumed, unless there is sometliing to indicate the contrary, that it 
reached its destination, and also that it was delivered to the officer 
unless he was absent from his regiment; and if the officer is absent 
without authority, the receipt of the order at his proper station is 
held to be a constructive delivery to him. R. 12, 230, Jan., 1865; 13, 
284 Cbnd 335, Jan., 1865; 19, 696, Oct., 1866; 22, 506, Dec, 1866; 28, 
423, and 426, Mar., 1869; 30, 48I, July, 1870; 31, 327, Apr., 1871; 34, 
364, July, 1873; P. 49, 91, 176, Sept., 1891; 65, 289, June, 1894. C- 
1289, Apr. 24, 1895. 

I B 1 a. An order affecting a military person becomes operative as 
to such person when he has received military notice of its existence 
and contents; that is, if the order be general in character, it becomes 
operative when it has been formally promulgated to the command to 
which it pertains; if it be special or individual in its operation, it 
becomes effective when it has been served upon or received by such 
})erson through the usual military channels.^ It may be regarded as 
an established practice in our service that the date of receipt of a 
general order by a command is the date on wliich it takes effect as to 
that command. It is not necessarj to go further and attempt to 
trace the general order to each individual. Such a general order is 
not unhke a statute of general character in that it puts forth a binding 
general rule of action, intended for the guidance of a whole community, 
and when no other date is indicated, the date of the order is the date 
when it takes effect ;2 but the custom of the service (established prac- 
tice) which it must be remembered has the force of law^ modifies this to 
the extent stated above, but to that extent only. This custom of the 
service is a modification of the principle that no military person can 
plead ignorance of military law (including regulations), and were it 
not for this modification the principle in all its severity would be legally 
applicable. When the date of the receipt of the general order by the 
command can not be ascertained, the only fixed date that there is, 
namely, the date of the order, should be taken as the date when it took 
effect, particularly in cases where the general orders affect the military 
history of soldiers in the past and a fact of that past history is to be 
determined; but a soldier can not be held criminally responsible under 
a general order after its date, but before knowledge of it could have 

1 Davis's Military Law, 382. 

^ This refers to the rule that, except when otherwise provided by Constitution or 
statute, a statute takes effect on its passage, as in the case of an act of Congress. 

3 84th A. W. ; Winthrop Military L. & P. 42, 438; Davis's Military Law, 10; De Hart, 
164;Benet, 119. 

In the Regulations for the British Army it is laid down that "ignorance of published 
orders will never be admitted as an excuse for their nonobservance " ; but in that service 
the regulatibns in reference to the promulgation of orders are more specific than ours. 
They require, among other things, that all orders specially relating to the soldiers are to 
be read and explained to them immediately after such orders are received and those of 
an important nature are to be read to them on three successive parades. 



COMMUNICATIONS I B 2. 277 

reached the command to which he belonged. C. 8962, Sept., WOO: 
13962, Jan. 29, 1903. 

I B 2. It is the estabhshed practice of the department to issue 
orders detailing officers for duty, which are to become operative at a 
future date; held, that such an order does not operate to detach the 
officer from liis organization or post of duty until it becomes time for 
him to start for his new post in order to comply with the order, 
G. 22176, Oct. 4, 1907. 

I C. All order from the War Department assigning a certain officer 
to a duty (acting judge advocate) in lieu of another named, relieves 
the latter and his detail ends with the date of such assignment. That 
the commander of the department in which he was serving omits at 
the time to issue the usual order relieving him does not affect his 
status, or entitle liim to be paid, as of the special rank of the detail 
up to a subsequent date when the department commander did actually 
issue such an order. He was relieved in fact by the original order of 
assignment of a successor when the latter entered upon the duty under 
the order. P. 52, 1^99, Mar., 1892. 

I D. An order can not create a fact to-day and carry it back to some 
date, and there set it up as a fact occurring on that date, whereas in 
reality^ no such fact then occurred. But care should be taken to dis- 
tinguish between such an impossibility and a legally retroactive execu- 
tive order or regulation, as when a thin^ is done without the approval 
of the Secretary of War, his approval being required, and he subse- 
quently ratifies the thing done.* Between such action as this and the 
attempt to manufacture a fact as happening in the past it is important 
but not difficult to distinguish. Thus all orders in the cases of officers 
and enlisted men, which purport to make appointments, acceptances 

' This is certainly correct, but it would be well to notice that the instance of a legal 
ratification which is given does not cover the whole subject. There are acts which 
neither statute nor regulation authorizes an officer to do subject to the approval of a 
higher authority, but which, when done by him, may be validated by ratification; 
and it would probably be useful to determine what kind of acts these are. 

The principal rule to be laid down in this regard would seem to be that the act must 
he one power to do which the higher authority might legally delegate to the inferior 
at the time of the ratification and might have delegated at the time the act was done. 
If the superior authority could not thus delegate the power he could not ratify the act. 
He could not ratify an act which he had no authority to do himself; thus, he could not 
ratify an act violating a law. And another restriction arises out of the character of the 
act, whether ministerial or judicial or discretionary. Judicial power and also such 
power as is by law intrusted to the discretion of the superior authority can not be dele- 
gated by him to another, nor can he ratify such an act when done by the other. Such 
at least would seem to be the strict rule in the relation of the superior officer and subor- 
dinate. As stated by Mechem (Mechem on Public Officers, sec. 567): 

' ' In those cases in which the proper execution of the office requires, on the part of 
the officer, the exercise of judgment or discretion, the presumption is that he was 
chosen because he was deemed fit and competent to exercise that judgment and dis- 
cretion, and, unless power to substitute another in his place has been given to him, 
he can not delegate his duties to another. ' ' And the same author says (sec. 529): 

"It is, therefore, the general rule that one may ratify the previous unauthorized 
doings by another in his behalf, of any act and of that only which he might then and 
could still lawfully do himself, and which he might then and could still lawfully 
delegate to such other to be done. ' ' 

Whether the foregoing can, in all strictness, be applied to military relations, I am 
not entirely prepared to say. Theoretically it is, I think, correct, but I believe that 
it has not been very closely adhered to in practice. The performance of acts of a 
purely ministerial or executive nature can always be delegated or ratified, unless 
expressly prohibited or the power is expressly exclusively vested in the superior. 
(Note by Judge Advocate General to opinion of Sept. 14, 1900, C. 8962, supra.) 



278 COMMUNICATIONS II A 1. 

of resignations, discharges from the service, or muster-out of service 
date from, or take effect from, dates prior to the issuance of the orders 
therefor, are instances of the attempts referred to and are illegal. 
C. 8962, Sejyt., 1900. _ ; 

II A 1. Held that the words "penalty for private use — $300," 
printed upon an official envelope, constituted a sufficient "statement" 
under the act of July 5, 1884 (23 Stat., 158), which provides simply 
that the envelopes shall "bear a statement of the penalty for their 
misuse." P. 60, 425, July, 1893; C. 11337, Nov. 12, 1907. 

II A 2. If the matter of carrying on correspondence becomes the 
official duty of a public officer and he conducts it in the discharge of 
that official duty, he is entitled to use the penalty envelope; otherwise 
he would not be. C. 276, Sept., 1894. 

II A 2 a. The law regarding the use of penalty envelopes (act of 
Mar. 3, 1877, c. 103, s. 5 and 6, and the act of July 5, 1884, c. 234, 
s. 3) restricts the use of such envelopes, for the free transmission of 
inclosures, to "officers of the United States Government" ; except that 
in the latter act it is provided "that any department or officer author- 
ized to use penalty envelopes may inclose them, with return address, 
to any person or persons from or through whom official information 
is desired, the same to cover such official information and indorse- 
ments relating thereto." C. 6236, Apr., 1899. Held therefore that 
the authorities of a college, etc., where an officer of the Ai'my is on 
duty under section 1225, R. S., are not authorized to initiate the use 
of the penalty envelope for the transmission of official papers per- 
taining to the military department thereof, but may legally transmit 
the same to the proper department of the Government in penalty 
envelopes previously furnished to them by the department for the 
purpose. C. 729, Bee, 1894. 

II A 2 b. Held that penalty envelopes can not be inclosed by an 
officer in a letter to contractor for use in returning signed vouchers. 
a 20371, Jan. 23, 1907, and June 22, 1907. 

II A 3. Held that recruiting officers may legally use the penalty 
envelope for the transmission to private persons of circulars, letters, 
etc., giving information with regard to enlistment in the military 
service, and may also when verifying, by letter, an applicant's char- 
acter inclose a penalty envelope to cover the information sought. 
a 1593, July, 1895. 

II A 4. When matters pertaining to the muster in of United 
States volunteers "relate exclusively to the business of the Govern- 
ment of the United States," adjutants general of the respective 
States assisting in such muster in may legally use the penalty 
envelope in their correspondence to the extent stated, but any 
person using it must decide for himself whether in the particular 
case it may legally be used, having in mind his criminal liability for a 
misuse thereof. C. 4610, Jan., 1898; 6173, Apr., 1899; 7351, 
Nov., 1899. 

III A. A post commander recjuested authority by telegraph to 
extend a furlough granted by him to an enlisted man; held, that 
such a dispatch did not come within the prohibition of (paragraph 
1203) Army Regulations (of 1910) as it related to the public business 
and did not originate with the beneficiary of the furlough. C. 23362, 
June 4, 1908. 



)1 

I 



COMMUNICATIONS TV B 1 — COMPANY. 279 

IV B 1. An officer attempted to influence the action of the War 
Department through channels otherwise than military. Held that 
his action was a violation of Army Regulations and of the Executive 
order of July 7, 1905. (G. O. 112, W. D., 1905), and that a proper 
notation should be entered on his efficiency record. C. 24509, Feb, 
17, 1909. 

IV B 2. Held that in reply to a request from a committee of 
Congress an officer stationed outside of Washington can furnish 
information direct to such committee, but that an officer stationed in 
Washington must forward such reply through military channels. 
C. 28796, Aug. 3, 1911. ■ • 

CROSS REFERENCE. 

Confidential See Army I G 3 a (3); (4) (a) [2]. 

Convening order See Discipline III G 1 ; XIII B ; XV E 8. 

Evidence of. See Discipline XI A 17 a to b. 

Illegal convening order See Discipline XV H 1 to 3. 

Militia ' See Militia XIV to XV. 

Order for revision ,. See Discipline IX N 2. 

Privileged See Discipline XI A 5. 

Promulgating order See Discipline XI V F 1 to 3. 

COMMUTATION OF QUARTERS. 

See Pay and allowances II A 2 b to c. 

Absent See Absence I B 1 n. 

Heat and light allowance See Pay and allowances II A 1 c (3) ; (6) ; 

d (2). 

Promotion See Pay and allowances II A 1 c (5). 

State disbursing officer See Militia VI B 1 e (1). 

Traveling on duty See Pay and allowances II A 2 b (3). 

COMMUTATION OF RATIONS. 

See Absence I C 4 e (1). 

Fixing of rates See Pay and allowances II A 3 b to c. 

Forfeiture of, by deserter See Desertion V D 3 to E 6. 

With heat and light See Pay and allowances II A 1 b (2). 

COMMUTATION OF SENTENCE. 

Dismissal: Effect of on pay See Pay and allowances III F 1. 

Discipline VIII D Ic (I). 

Notice of See Discharge XIII D 5. 

Operates ivhen See Pay and allowances III C 1 b. 

Power of. See Articles op War CXII A to E. 

Unauthorized See Discipline XIV E 9 a (17) ; b (1). 

COMPANY. 

Unincorporated, bonds of. See Bonds I H to I. 



280 COMPANY COMMANDER CONDEMNATION. 

COMPANY COMMANDER. 

Appointments recommended See Comman d V V 1 c . 

Appointment of noncommissioned officers. See Rank I D to E. 

Apprehended deserter, hoio taken up See Desertion VII A 1; XII B. 

Barber shops, billiard and pool tables au- See Government agencies VII. 
thorized. 

Character on soldier's discharge See Discharge XI A to C 1. 

Clothing to apprehended deserter See Pay and allowances II A 3 a (4) (c). 

Death c^ soldier See Articles op War CXXVI A. 

Deserter not discharged See Desertion XV F. 

Desertion by soldier See Desertion V F 15. 

Delegation of authority See Command VI A ] a; lb. 

Discipline I E 1. 

Exceeds authority See Command VI B. 

First sergeant, detail of. See Army I E 1 b. 

Objection to reenlistment See Discharge XI C 1. 

Punishments by See Discipline XVII A 1. 

Recomnnendation for certificate of merit See Insignia of merit II B. 

Reduction of noncommissioned officers See Command V C 2. 

Unauthorized punishment by See Discipline XVII B 1 e. 

Waste products, abandoned property , etc See Public Money I to II. 

COMPANY FUND. 

See Government agencies. 

Coohs paid from See Pay and allowances I C 6 b (4). 

Forced contributions to See Discipline XVI 1 B 1 e. 

Indebtedness to See Desertion XIV F. 

Salvage paid into See Claims VI D. 

Stoppage of officer's pay, to reimburse See Pay and allowances III B 7 to 8. 

COMPANY TAILOR. 
Debts to See Articles op War XXI B 1. 

COMPETITION. 

When useless See Contracts VII G to H. 

COMPTROLLER OF THE TREASURY. 
Views of. See Civil authorities II a. 

CONCERTS. 
By Army band See Army bands I G 1. 

CONCURRENT JURISDICTION. 

See Articles op War, LVIII A. 

See Public property V C 1 to D; E 1 a. 

CONDEMNATION. 

Land See Public property II A 4 to 5; IV A 1. 

a(]). 

Military stores See Public property IX A 2 a to b. 

Money, deposit of , . . See Public property J 1 A 6 d. 



CONDEMNED PKOPERTY- — CONSTKTTCTTVE MUSTEK TN. 281 

CONDEMNED PROPERTY. 

Disposition of. See Militia IX G. 

CONFESSION. 

Evidence of. See Discipline XT A 7a; b . 

CONFINEMENT. 

See Discipline XVII A 4 a to i. 

At date of discharge See Enlistment I D 3 c (17). 

Considered in imposing sentence See Discipline XII B. 3 g (4). 

Discharge while in See Discharge III D. 

Escape from See Desertion I G 1. 

For contempt of court See Articles op War, LXXXVI B 1 a. 

For serious offenses only See Articles op War, LXVI A. 

Honest and faithful service while in See Enlistment I D 3 c (1). 

Notice of discharge See Discharge XIII D 6 a; b. 

Retired soldier See Retirement II B 3 b . 

Sentence to See Discipline XII B g (1) to (4). 

Several penalties of See Articles op War, LXXXIII G; C 2. 

Two sentences See Discharge I V E. 

CONGRESS. 

Communication tvith, by officer See Communications IV B 2. 

Creates office See Office II to III. 

Nunc pro tunc appointments authorized See Pay and Allowances I B 1 a. 

Pardoning power no control over See Pardon I B; B 1. 

Public property, disposal of See Public Property I; I A; A 1. 

War I C 6 c (3) (6). 
Right of way See Public Property VI B to C. 

CONGRESSIONAL MEDAL. 

See Insignia of Merit I E. 

CONGRESSMEN. 

Appointment of cadets See Army I D 1 to 2. 

Purchase of supplies from See Contracts XV to XVI. 

Remarks by, during debates See Laws I B 6. 

CONSCRIPTION. 

Of militia See Militia I C. 

CONSTITUTIONAL APPOINTING POWER. 

See Office II to VI. 
Not exercised by regimentnl commander See Command V ( ' ] a. 

CONSTRUCTIVE DISCHARGE. 

See Discharge VIII A. 
CONSTRUCTIVE ENLISTMENT. 

See Enlistment I A 3 to 4. 

CONSTRUCTIVE MUSTER IN. 

See Volunteer Army II B 1 <1 lo e; 2 a(l). 



282 CONSTRUCTIVE NOTICE — CONTINUING PUNISHMENT. 

CONSTRUCTIVE NOTICE. 

Of acceptance of resignation See Office IV D 5 c (i). 

Of discharge ..See Discharge XIII D 1. 

CONSTRUCTIVE PARDON. 

See Pardon XV to XVI. 
* See Absence II B 7. 

By restoration to duty uyithout trial See Desertion IX N; XV D. 

CONSULAR SERVICE. 

Employment of United States civilian em- 
ployee in See Civilian employees VI A. 

Exterritoriality as to transports See Army I G 3 b (2) (a) [3] [g]. 

Officer of, designated to cause deposition to he 
' taken See Articles of War XCI D. 

CONTAGION. 

Destruotion of property to prevent See Pay and allowances II A 3 a (d) 

to (e). 

CONTEMPT OF COURT. 

See Articles of War LXXXVI A to B 
lb. 

See Discipline X G 1. 
Of civil court See Army I E 5. 

See Private debts IX. 
Punishment for See Discipline VII A; 2. 

CONTINGENCIES OF THE ARMY. 

See Discipline X F 1; 2. 

See Civil authorities I B 1. 

Appropriations for See Appropriations XXIV. 

Civilian messenger, payment of. See Army II K 1 f (I). 

Claims, not available to pay certain See Claims IV. 

Reward paid from See Desertion V B 1 a to d. 

CONTINGENCIES OF THE WAR DEPARTMENT. 

Appropriations for See Appropriations XXIII. 

CONTINGENT INCAPACITY. 

Can not be retired for See Retirement I B 1 b (1) (6). 

CONTINUANCE OF COURT-MARTIAL. 

See Articles of War XCIII A 1; 2. 

CONTINUING PUNISHMENT. 

Incapacity to hold office See Pardon XACI A 1. 

Pardon of. See Pardon IV to V. 



CONTINUOUS kSEEVTCE CONTRACTS: SYNOPSIS. 288 

CONTINUOUS SERVICE. 

See Absence II B 9. 

Ajfected by acceptance for reenlistment See Enlistment I A 8 b; c. 

During fradulent enlistment See Enlistment I A 9 o. 

Pay See Pay and allowances I C 5 to 6. 

CONTRABAND. 

Seizing of, to preserve neutrality See Army II K 1 e to f. 

CONTRACTS.! 

I. PARTIES TO CONTRACTS AND SIGNING OF CONTRACTS. 

A. The United States. 

1. Where name of contracting officer recited in body of contact 

varies from name actually signed Page 291 

2. \Vhere Congress imposes upon certain named officials duty of 

making contract, such duty can not be delegated. . Page 292 

B. The Contractor. 

1. Where individual conducts business under company named 

contract and bond should be in name of individual. 

2. Assignees and executors should execute contract in their own 

name not in name of assignor or testator. 

3. No objection to an executor being a party to a contract. 

4. A Government agency or instrumentality may contract with the 

Government. 
n. CONTRACT WITH PUBLIC OFFICER IN HIS OFFICIAL CAPACITY 

DOES NOT BIND HIM PERSONALLY Page 293 

ra. SCOPE AND PURPOSE OF SECTION 3709, REVISED STATUTES, 
WHICH REQUIRES ADVERTISING. 

A. In General. 

B. Performance of Work by Hired Laborers Page 294 

C. Not Illegal to Limit Bids to Certain Special Make of Appa- 

ratus. 

D. Sufficiency of Description in Advertisement. 

IV. OTHER ACTS THAT REQUIRE ADVERTISING. 

A. Act of March 2, 1901 Page 295 

B. Act of June 17, 1910. 

V. SECTION 3828, REVISED STATUTES, FORBIDDING ADVERTISE- 

MENTS FOR EXECUTIVE DEPARTMENTS EXCEPT BY AUTHOR- 
ITY OF HEAD OF DEPARTMENT. 

A. Written Authority Must Precede Publication. 

B. Does Not Apply to California Debris Commission. . Page 296 

VI. BIDS AND BIDDERS. 

A. In General Who is Lowest Bidder Page 297 

B. Lowest Responsible Bidder for Printing Under Act of June 

30, 1886 Page 298 

C. Where Bidder Defaults Contract With "Some Other Per- 

son" AND Loss Charged to Guarantors. 

D. Contract Void if Not Made With Lowest Responsible Bidder 

Under Act of July 5, 1884. 

E. Bids Received After Hour for Opening Bids Page 299 

' Prepared by Maj. H. M. Morrow, judge advocate, assistant to Judge Advocate 
General. 



284 CONTRACTS: SYNOPSIS. 

•VI. BIDS AND BIDDERS— Continued. 

F. Letter Accompanying Bid Considered Part of it. . . Page 300 

G. Failure to Sign. 

H. Verbal Authority to Sign Bidder'vS Name to Bid is Sufficient. 
I. Requirements of Advertisements that May be Waived. 
J. Rejection of Bids. 

1. Readvertisement equivalent to rejection of all bids not before 

accepted Page SOI 

2. Acceptance of one bid constitutes rejection of all others. 

3. Where all bids rejected all guarantors released Page .W2 

4. For fraud, collusion, etc. 

5. Under General Order 167, War Department, 1905, for unjustifi- 

able failure to fill former contract Page SOS 

6. Where bidder interested in more than one bid. 

7. Where contract executed, it can not be canceled on account 

of failure to perform previous contract. 
K. Bidder Can Not Demand Prices of Other Bids. 
L. Variance Between Advertisement and Bid. 

M. Variance Between Acceptance and Bid Page S04 

N. Bidders Can Not Make Material Amendment to Bid After 

Bids Have Been Opened Page SOS 

O. Instances as to Whether Bid Is for All or Part Only of the 
Articles or Quantity. 
Vn. EXCEPTIONS TO THE RULE REQUIRING ADVERTISING. 

A. Where There Is an Exigency Under Section 3709 Revised 

Statutes. i 

1. What constitutes an exigency Page 306 

2. Who can determine whether exigency exists. 

B. Where Supplies or Services Are Not Under a "Department" 

Under Section 3709, Revised Statutes Page 307 

C. Where Subject of Contract Is Not "Supplies" Under Section 

3709, Revised Statutes Page 308 

D. Where Subject op Contract Is "Personal Services" Under 

Section 3709, Revised Statutes. 

E. Where the Aggregate Amount Does Not Exceed $500 Under 

Act op June 12, 1906. 

1. The act of June 12, 1906, in general Page 309 

2. Does not apply to river and harbor improvements and other 

civil work of nonmilitary character. 

3. War College is branch of "Army Service." 

4. When aggregate does not exceed |500 not necessary to adver- 

tise or make written contract as required by section 3744, 
Revised Statutes. 

5. Meaning of purchases "in open market." 

F. Where Statute Provides Work May Be Done "by Contract 

or Otherwise." 

1. Under the act of August 11, 1888, relating to river and harbor 

improvements. 

2. Under the act of March 3, 1905, relating to improvements at 

West Point Page 310 

G. Where Competition Would Be Useless. 

1. Patented and copyrighted articles*! Page 311 

2. Obtaining of rare maps. 

3. Miscellaneous instances. 



CONTEACTS: SYNOPSIS. 285 

Vn. EXCEPTIONS TO THE RULE REQUIRING ADVERTISING— Con. 
H. Where Previous Advertjsement Is Without Result. 
I. Where the Purchase Is from Another Executive Department 
OR Bureau, or From a Governmental Agency Such as a Post 

Exchange, Post Laundry, etc Page 312 

J. Where Additional Work is Required as "Extras" or Under 
A Supplemental Contract. 

1. If contract still in existence there may be a supplemental con- 

tract, but not if contract has been canceled or annulled. 

2. A\'here contract provides for additional time, such time may be 

granted by a mere letter Page 313 

3. Supplemental contract must be confined to subject of original 

contract Page 314 

4. Illustrations of supplemental contract Page 317 

5. General character of an "extra " Page 320 

6. Illustrations of "extras." 

7. "Extras" where contract requires approval before performance 

of work Page 321 

8. Supplemental contract must not be against interest of United 

States. Illustrations of the nature of the consideration which 
will make a supplemental contract in the interest of the 
United States Page 322 

9. Even after expiration of time limit extension of contract may 

be made to specific date by supplemental contract. Page 324 

10. Even after waiver of time limit partial payments may be made 

in accordance with contract. 

11. Instances that do not constitute an extension of the time for 

completing the contract. 

12. Contract gives subordinate power to decide a certain matter, 

his discretion can not be controlled by superior. . . Page 325 
vm. CONTRACTOR NOT RELEASED FROM CONTRACT WHEN RELEASE 
WOULD BE AGAINST INTEREST OF UNITED STATES... Page 326 
IX. MISTAKE AS GROUND FOR RELEASING BIDDER OR FOR NON- 
PERFORMANCE OF CONTRACT. 

A. Mistakes That Release Bidder Page 328 

B. Sale by Sample and Description, Mistake as to Sample. Page 332 

C. Mistake Ground for Nonperformance of Contract. . . Page 333 

X. MISCELLANEOUS GROUNDS FOR NONPERFORMANCE OF CONTRACT. 

A. Variance Between Contract and Requirement of Officer in 

Charge. 

B. Difficulty op Performing an Unconditional Contract not an 

Excuse Page 334 

C. Act of God is an Excuse Page 335 

D. Injunction against Contractor not an Excuse. 

E. Bankruptcy of Contractor not an Excuse. 

XI. LIABILITY OF BIDDERS AND GUARANTORS— CERTIFIED 

CHECKS, ETC. 

A. Withdrawal after Opening, before Acceptance — Changes in 

Guaranty. 

B. Withdrawal before Opening — Partial Withdrawal. . Page 336 

C. Withdrawal after Acceptance Page 337 



286 contracts: synopsis. 

XI. LIABILITY OF BIDDERS, ETC.— Continued. 

D. Guarantors' Liability, Strictly Construed. 

1. Where bidder dies within time limit, estate not bound. 

2. Notice called for in guaranty must be actual. 

3. Acceptance after expiration of time limit not binding on 

guarantors. 

E. "Blanket" and "General" Guaranties Legal Page 338 

F. Regulation Requiring Guaranties may be Waived. 

G. Omission to File Guaranty not Cured by Filing Bond after 

Opening. 
H. Where Guaranty is not Required by Instructions. 
I. Certified Check Substantial Compliance with Requirement 

FOR Guaranty. 
J. Certified Check, Bidder not Liable beyond Amount. Page 339 
K. Where Certified Check was to be Retained to Secure Con- 
tract, SHOULD be Cashed and Suit Instituted for Balance 
of Loss. 
L. Cash Deposited to Secure Contract Applied to Complete 
Work, Balance, if any, Returned to Contractor. 
Xn. ADVANCES OF PUBLIC MONEY— SECTION 3648, REVISED 
STATUTES. 
A. Rent may be Paid in Advance. 
Xm. CONTRACTS AND EXPENDITURES IN EXCESS OF APPROPRI- 
ATIONS. 

A. Section 3679, R. S.— Fiscal-Year Contracts, etc Page S40 

B. Section 3679, R. S., as Amended March 3, 1905 Page 341 

C. Section 3732, Revised Statutes — Subsistence, etc., of Army 

Excepted Page 343 

D. Section 3733, Revised Statutes, Buildings and Public Improve- 

ments Page 346 

E. Contracts in Excess op Appropriations, Conditioned on Future 

Appropriations or Imposing Indefinite Liability on the 

United States, Unauthorized Page 346 

XIV. ASSIGNMENT OF CONTRACTS, ETC.— SECTIONS 3477 AND 3737, 
REVISED STATUTES. 

A. General Effect of These Statutes Page 34'^ 

B. Assignment Voidable not Void. 

C. Contract Provisions Regarding Assignment Page 348 

D. Do not Include Assignments in Bankruptcy, for the Benefit 

OF Creditors, etc. 

E. Do not Apply to Assignments by Operation of Law — Execu- 

tors, etc. 

F. Receiver Bound and Entitled to Perform Page 349 

G. Distinction Between Assignment of Contract and of Claim 

UNDER Contract. 
H. Money Due under Contract Payable to Contractor Only. 

I. Agreement With Surety Page 350 

J. Instances of Assignments Void under Section 3477, Revised 

Statutes. 



CONTEACTS: SYNOPSIS. 287 

XV. PURCHASES FORBIDDEN FROM PERSONS IN THE MILITARY 
SERVICE OR IN WHICH MEMBERS OF CONGRESS INTER- 
ESTED. 

A. Under Paragraph 603, Army Regulations, 1910. 

1. Directory only, officer under no statutory incapacity. Page 351 

2. Does not apply where contract requires approval of Secretary 

of War Page 352 

3. Does not include civilian employees, etc. 

4. Does not apply to wife of soldier carrying on independent 

business Page 353 

5. Does not apply where contract is with corporation in which 

officer holds stock. 

B. Contract in W^hich Member, etc., of Congr"8s Interested — 

Sections 3739 to 374ii, Revised Statutes, 

C. Lease of Building by Retired Officer Page 354 

XVI. CONTRACTS TO BE IN W' RITING AND SIGNED AT THE END— SEC- 
TION 3744, REVISED STATUTES. 

A. Scope and Effect — Illustrations Page 355 

B. Where under Accepted Bid Performance Begins W^ith Accept- 

ance, on Refusal to Approve Contract, Bidder to be Paid 
FOR Work Performed Page 359 

C. In Absence of Written Contract no Recovery for Failure to 

Perform. 

D. Effect of Papers Signed by One Party Only. 

E. Contracts for Soldiers' Home not Within Section 3744, Revised 

Statutes Page 360 

F. Paragraph 558, Army Regulations, 1910, as to Methods of 

Purchasing Supplies. 

G. Formal Written Contract Not Required under Act of June 

12, 1906. 

H. Sufficient Signing under the Statute Page 361 

XVn. RETURNS OFFICE— OATHS— SECTION 3745, REVISED STATUTES. 
XVm. SET-OFFS AND RIGHT TO WITHHOLD MONEYS DUE CON- 
TRACTOR PageS62 

-XEK. DAMAGES, LIQUIDATED DAMAGES, AND PENALTIES TO SECURE 
ACTUAL DAMAGES. 

A. Provision for Forfeiture a Penalty Page 363 

B. Provision for Reduction in Price May be a Penalty. 

C: Provision for P'orfeiture of all Retained Percentagesv 
Penalty. 

D. Provision for Damages for Failure as to Any of Two or More 

Independent Things a Penalty. 

E. Where Forfeiture op Certified Check is a Penalty. .. Page 364 

F. Where Damages are Excessive, Stipulation will be Regarded 

AS A Penalty. 

G. Salary, etc., of Inspector Page 365 

H. Delay by Subcontractors no Ground for Relief. 

I. Damages Where Similar Articles can not be Procured. 

1. Principal contractor liable where his failure requires increased 
payments to contractors for minor parts of work. 



288 CONTKACTS: SYNOPSIS. 

XIX. DAMAGES, LIQUIDATED DAMAGES, ETC.— Continued. 

J. Damages Where There is Such Delay as to Amount to Aban- 
donment OF Contract Page 366 

K. Where Damages can not be Ascertained Owing to Abandon- 
ment OF Project by Government. 
L. Contractor Responsible for Actual Damages, Although None 

Stipulated for. 
M. Where Delay is Chargeable to Government, 
N. Where a Certified Check Given to Secure Return of Plans 

Actual Damages Only Can be Deducted Page 367 

XX. LABOR AND MATERIAL-MEN. 

A. Have No Lien on Government Property. 

B. Prior to Act of August 13, 1894, Secretary op War Could Not 

Authorize Subcontractor to Sue on Contractor's Bond in 
Name of United States Page 368 

C. Bonds Under the Act op August 13, 1894. 

1. Scope of act. 

2. ^Vhere vessel built in foreign country Page 369 

3. Certified check can not be received in lieu of bond. 

4. Allegations in affidavit required to accompany application for 

copy of bond. 

5. When copy of contract and bond should be furnished. 

6. United States should not withhold money due contractor in 

order to pay debts of contractor or indemnify surety. 

7. Double aspect of bond Page 370 

8. Contract between United States and municipality not within 

act. 

9. Failure to pay subcontractors' claim no sufficient cause to strike 

company off list of qualified sureties. 

10. Assignee in bankruptcy should give bond for protection of 

labor and material-men. 

11. Where, on default, supplementary contract made with surety to 

finish the work, new bond should be given Page 371 

12. On proper application copy of contract and bond should be fur- 

nished .to subcontractors. 

13. Where the work has been performed, bond should be required 

before payment for the protection of labor and material-men. 

14. Copy furnished should be authenticated as required by section 

882, Revised Statutes. 

15. Permission under Secretary of War not required for commence- 

ment of suit. 
XXI. ANNULMENT OF CONTRACT BY UNITED STATES. 

A. Where Forfeiture Follows Annulment, Positive Action to 

Indicate Intent to Annul. 

B. Mere Breach of a Term of Contract Insufficient.. Page 372 

C. Action in Annulling Contract Final and Can Not Be 

Rescinded. 

D. Where Contract Provides for Taking Possession of and 

Retaining Plant., etc., op Contractor on Annulment, Use 
op Plant on Other Improvements. 

E. To Justify Annulment there Must Be a Substantial Failure 

to Perform Faithfully. 



CONTKACTS: SYNOPSIS. 289 

XXn. ABANDONMENT AND REPUDIATION BY CONTRACTOR. 

A. Unreasonable Delay in Commencing Performance May Be 

Treated as Abandonment Page SIS 

B. Where There Is an Anticipatory Breach, Government Need 

Not Await. Expiration op Time Before Taking Steps to Sup- 
ply Deficiency. 
XXm. CONTRACTS WITH ALIENS AND EMPLOYMENT OF ALIEN AND 
CONVICT LABOR. 

A. No Authority to Restrict Purchases to Articles of Domestic 

Production, nor to Forbid Employment of Aliens, in Absence 
OF Statute. 

B. No Authority to Prevent Contractor from Using Convict 

Labor in Absence of Statute. 

C. No Statute Justifying Annulment Because Italian Labor 

Employed Fage SI A 

D. The Executive Order of May 18, 1905, Forbidding the Employ- 

ment OF Persons Undergoing Sentences of Imprisonment. 

E. Aliens are Competent to Bid for Government Work. 

F. Contract Provision that Contractor Should not Permit 

Anyone Furnishing Him Labor or Material to Employ 
Convicts. 

G. The Act of March 3, 1875, as to Giving Preference to American 

Material Page 375 

H. Under Act of March 4, 1911, as to Purchase of Foreign Mate- 
rial FOR Fortifications, General Authorization. 
XXIV. CONTRACTS CONTAINING PROVISION FOR AN INCREASE OR 

DECREASE IN ORIGINAL QUANTITY Page S76 

XXV. OCCUPATION OF PREMISES UNDER CONTRACT, EXPRESS OR 
IMPLIED, RAISES IMPLIED OBLIGATION SO TO USE PREMISES 

AS NOT TO INJURE THEM UNNECESSARILY Page 377 

XXVI. WHERE DESCRIPTION AMOUNTS TO WARRANTY. 
XXVn. WHERE A CONTRACTOR IS RESPONSIBLE FOR LOSS BY FIRE 
AND FAILS TO COMPLETE BUILDING AND GOVERNMENT 
COMPLETES THE BUILDING IT MAY BE INSURED AT EX- 
PENSE OF CONTRACTOR. 
XXVm. WHERE BIDDER FAILS TO ENTER INTO CONTRACT, CONTRACT 
MAY BE MADE WITH GUARANTOR AS AN OPEN-MARKET 

TRANSACTION Page 378 

XXIX. WHERE CONTRACTOR FAILS TO CARRY OUT CONTRACT, 
SURETY NOT ENTITLED TO PERFORM IN ABSENCE OF PRO- 
VISION TO THAT EFFECT. 
XXX. WHERE A PARTNERSHIP IS DISSOLVED, ONE OF THE MEM- 
BERS MAY BE ALLOWED TO MAKE CONTRACT. 
XXXI. PAYMENTS MAY BE MADE TO ANY MEMBER OF A PARTNER- 
SHIP, ALTHOUGH ONE OF THE MEMBERS MAY HAVE FILED 
PROTEST. 
XXXn. ARMY REGULATIONS, ALTHOUGH NOT STRICTLY APPLICABLE 
TO CONTRACT OF UNITED STATES SOLDIERS' HOME, SHOULD 
BE FOLLOWED. 
XXXm. CONTRACT WITH EMPLOYEE TO FORFEIT ALL PAY DUE IF HE 

QUITS SERVICE WITHOUT NOTICE IS LEGAL. 
XXXIV. WHERE GOVERNMENT HAS OPTION TO RENEW CONTRACT, 
THE SOLICITING OF BIDS FOR NEW FISCAL YEAR IS NOT 
AN ABANDONMENT OF OPTION. 
93673°— 17 19 



290 CONTEACTS: SYNOPSIS. 

XXXV. PRINTING FOR CONSTRUCTING QUARTERMASTER NOT PRINT- 
ING "AT DEPARTMENT HEADQUARTERS" Page 379 

XXXVI. CONTRACTS UNDER WAR DEPARTMENT NOT REQUIRED TO 

BE UNDER SEAL. 
XXXVn. WHERE BIDDER HAS BEEN PLACED IN HANDS OF RECEIVER 
APPROVING OFFICER MAY REFUSE TO APPROVE CONTRACT. 
XXXVra. WHERE ARTICLES BID FOR NOT CONSIDERED SUITABLE BY 
THE GOVERNMENT, APPROVING OFFICER MAY REFUSE TO 
APPROVE CONTRACT. 
XXXIX. ACCIDENTAL FIRE NOT "FORCE OR VIOLENCE OF THE ELE- 
MENTS"; CONSTRUCTION OF THE WORDS "BY NO FAULT 
OF HIS OWN." 

XL. VOLUNTARY SERVICES NOT REQUIRED Page 380 

XLI. EVEN AFTER CONTRACT IS ENTIRELY COMPLETED ADDI- 
TIONAL PAYMENT MAY BE MADE ACCORDING TO TERMS 
OF CONTRACT TO COVER TARIFF DUTIES PAID. 
XLH. WHERE THE CONTRACT PROVIDES FOR SUPPLY OF FORAGE 
FOR A PARTICULAR STATION ONLY IT IS ILLEGAL TO ASK 
FOR FORAGE BEYOND THE NEEDS OF THAT PARTICULAR 
STATION. 
XLHI. THE LANGUAGE " HEIRS, EXECUTORS, AND ADMINIS- 
TRATORS" NOT ESSENTIAL IN CONTRACT. 
XLIV. MEANING OF WORD "LOCALITY" WHERE HAY CALLED FOR 

OF A CERTAIN GRADE OF THE "LOCALITY" Page 381 

XLV. CONSTRUCTION OF VARIOUS PROVISIONS IN CONNECTION 
WITH DREDGING AND EXCAVATING CONTRACTS. . . . Page 382 
XLVI. THE EFFECT OF CONSTRUCTION OF POST SEWER IS TO 
BENEFIT NOT ONLY THE GOVERNMENT BUT ALSO A WATER 
COMPANY FROM WHICH THE GOVERNMENT PURCHASES 
WATER, IT IS LEGAL TO CONTRACT WITH WATER COM- 
PANY FOR REDUCTION IN PRICE UNTIL THE CONSEQUENT 

SAVING EQUALS THE COST OF THE SEWER Page 383 

XLVn. NOTWITHSTANDING DELAY IN THE APPROVAL OF CONTRACT 
TPIERE WERE UNUSUAL INSTRUCTIONS TO BIDDERS, THE 
DELIVERY OF SUPPLIES SHOULD BEGIN FROM THE DATE 
OF CONTRACT AND NOT FROM DATE OF RECEIPT OF AP- 
PROVED COPY OF CONTRACT. 
XLVIII. ACTION OF GOVERNMENT IN ORDERING DELIVERY OF SUP- 
PLIES STOPPED AFTER MINIMUM QUANTITY DELIVERED 
CONSTITUTES AN ELECTION TO ORDER MINIMUM QUAN- 
TITY ONLY. 
XLIX. PARAGRAPH 535, ARMY REGULATIONS 1910, AS TO RENDER- 
ING ASSISTANCE IN PREPARATION OF PROPOSALS FOR CON- 
TRACTS, APPLIES TO RETIRED OFFICERS Page 384 

L. PARAGRAPH 663, ARMY REGULATIONS 1910, AS TO FORBIDDING 

SETTLEMENT WITH HEIRS, EXECUTORS, ETC. 
LI. SECTION 216, REVISED STATUTES, GIVES THE SECRETARY 

POWER TO MAKE REGULATIONS. 
LH. SECTION 3651, REVISED STATUTES, AS TO MAKING PAYMENTS 

IN MONEY FURNISHED TO DISBURSING OFFICER. 
Lm. SIGNING OF VOUCHERS, BONDS, CONTRACTS, BIDS, ETC., BY 

TYPEWRITER OR RUBBER STAMP * Page 385 

LIV. SECRETARY OF WAR MAY SET ASIDE HIS ACTION ON A CON- 
TRACT AT ANY TIME BEFORE CONTRACTOR HAS BEEN 
NOTIFIED. 



CONTRACTS I A 1. 291 

LV. FAILURE OF CONTRACTOR TO OBSERVE A CONTRACT PROVI- 
SION THAT HE RENDER PERIODICAL REPORTS OF WORK 
DONE DOES NOT PREVENT RECOVERY FOR WORK OMITTED 
FROM REPORT. 

LVI. NO AUTHORITY OF PARTNER TO SIGN INSTRUMENTS FOR 
PARTNERSHIP IF SUCH INSTRUMENTS ARE UNDER SEAL. 

LVII. WHERE A PURCHASE HAS NOT MET THE STRICT GOVERN- 
MENT TEST IT MAY BE ACCEPTED UPON THE CONTRACTOR 
GIVING BOND TO REPLACE THE PURCHASE IF IT SHOULD 

PROVE DEFECTIVE Page 386 

LVra. STOPPAGE OF SUPPLIES. (See Contracts XLVIII.) 

LIX. CONTRACTING OFFICER CAN NOT DESIGNATE THE OFFICIALS 
BEFORE WHOM A CONTRACT OR BOND SHALL BE EXE- 
CUTED. 
LX. TRANSPORTATION OF TROOPS OR SUPPLIES THROUGH FOR- 
EIGN COUNTRY. 

LXI. UNITED STATES CAN NOT RECOVER FROM GOVERNMENT CON- 
TRACTOR DAMAGES RESULTING FROM PROPER BLASTING. 
LXn. PAYMENT TO CONTRACTOR WHERE UNITED STATES IS IN 
POSSESSION OF PLANT CONSTRUC^TED, ALTHOUGH THE POS- 
SESSION IS ALLEGED TO INFRINGE A PATENT Page 387 

I A 1. A contract ^ recited that it was entered into between Capt. 
A and the contractor, while it was signed on behalf of the United States 
by Maj.B, held the validity of the instrument was not thereby affected. 
In legal effect the contract was made with the United States and was 
signed by a proper agent of the United States. The recital of the 

1 The power of the United States to make contracts is implied from its possession 
of the powers hi sovereignty. The United States is competent to enter into any con- 
tract not prohibited by law which is found to be expedient in the just exercise of the 
powers confided to it by the Constitution without even any express legislative author- 
ity, and it may be a party to implied as well as express contracts. In U. S. v. Tingey 
(5 Pet., 127^ it is said, "Upon this posture of the case a question has been made ancl 
elaborately argued at the bar how far a bond voluntarily gi\'en to the United States 
and not prescribed by law is a valid instrument, binding upon the parties in point 
of law; in other words, whether the United States have in their political capacity a 
right to enter into a contract or to take a bond in cases not previously provided for 
by some law. LTpon full consideration of this subject we are of opinion that the 
United States have such a capacity to enter into contracts. It is, in our opinion, an 
incident to the general right of sovereignty; and the United States being a body 
politic, may, within the sphere of the constitutional powers confided to it and through 
the instrumentality of the proper department to which those powers are confided, 
enter into contracts not prohibited by law and appropriate to the just exercise of 
those powers." See also Dugan v. "U. S., 3 Wheat. fU. S.), 172; U. S. v. Bradley, 
10 Pet. (U. S.), 343; U. S. v. Linn, 15 Pet. (U. S.), 290; Cotton v. U. S., 11 How. (U. 
S.), 229;. Neilson v. Lagow, 12 How. (U. S.), 107; U. S. v. Hodson, 10 Wall. (U. S.), 
407; U. S. V. Powell, 14 Wall. (U. S.), 502; Jessup v. U. S., 106 U. S., 151; Tvler v. 
Hand, 7 How. (U. S.), 573; U. S. v. Mora, 97 U. S., 413; Daniels, v. Tearney, 102 
U. S., 417; Moses v. U. S., 166 U. S., 571. 

In Smoot's case, 15 Wall., 36, the United States Supreme Court held that contracts 
of the Government should be given the same construction and effect as though both 
parties were private individuals. In this case the court said: "There is ina large class 
of cases coming before us from the Court of Claims a constant and ever recurring attempt 
to apply to contracts made by the Government and to give to its action under such 
contracts a construction and an effect quite different from those which courts of 
justice are accustomed to apply to contracts between individuals. There arises in 
the mind of parties and counsel interested for the individual against the United 
States a sense of the power and resources of this great Government, "prompting appeals 
to its magnanimity and generosity, to abstract ideas of equity, coloring even the 
closest legal argument. These are addressed in vain to this court. Their proper 
theater is the halls of Congress, for that branch of the Government has limited the 



292 CONTEACTS I A 2. 

name of the agent in the contract is not essential and an erroneous 
recital may be rejected as surplusage.^ C. IO402, May I4, 1901. 

I A 2. Congress having imposed upon certain designated officials 
the duty of representing the United States in the maldng of the con- 
tract for the monument to Lafayette, held that the authority was 
personal and could not be delegated, and that aU the officials named, 
or at least a majority of them, must sign the contract. R. 52, 363, 
July 1,1887. 

I B 1. Where an individual conducts his business under a company 
name, a contract and bond should be in the name of the individual 
and not in the name of the company, as the latter bemg a mere name 
having no existence as an artificial being, such as a partnership or 
corporation, is incapable of being a party to a bond. C. 18197, May 
11, 1907. 

I B 2. Where an assignee for a corporation has been appointed by 
a State court, and authorized to carry on the business, and desires 
to enter into a contract with the United States, the contract and 
bond should be in the name of and simed by the assignee, and not 

signed in the name of the corporation ''by assignee." C. 21^1^6, 

July 16 and 30, 1896. So, where a bidder died before the contract 
was entered into, held that the contract and bond should be in the 
names of the executors of his estate as such executors, and not in the 
name of the bidder ''by executors." C. 8403, May 11, 1900. 

IBS. Held that there is no legal objection to making a Govern- 
ment contract with an executor as such. If the executor had 
authority to carry on the business of his testator, the assets of the 
estate would be bound as well as the executor individually, but if 
the executor had no such authority he alone would be bound. C. 
16650, July 6, 1904. 

jurisdiction of the Court of Claims to cases arising out of contracts express or 
implied — contracts to which the United States is a party in the same sense in which 
an individual might be and to which the ordinary principles of contracts must and 
should apply. 

"It would be very dangerous, indeed, to the best interests of the Government — 
it would probably lead to the speedy abolition of the Court of Claims itself — if, adopting 
the views so eloquently ui-ged by counsel, that court or this should depart from the 
plain rule laid down above and render decrees on the crude notionsof the judges of 
what is or would be morally right between the Government and the individual. 
******* 

"In approaching the inquiry into the effect which the action of the Bureau of Cavalry 
in adopting these new rules for insp;ection had upon the rights of the parties to this 
contract let us endeavor to free ourselves from the consideration that the Government 
was one party to the contract, and that it was for a large number of horses; for we hold 
it to be clear that the principles which must govern the inquiry are the same as if the 
contract were l)etween individuals and the number of horses one or a dozen instead 
of four thousand." See also U. S. v. Smith, 94 U. S., 217. 

In \J.8.v. Bostwick, 94 U. S.,66, it was said, "The United States when they con- 
tract with their citizens are controlled by the same laws that govern the citizen in 
that behalf. All obligations which would be implied against citizens under the 
same circumstances will be implied against them. 

In 30 Ct. Cls., 360, it was said, "The law, as we understand it, was stated by Hamilton 
in these words, 'When a Government enters into a contract with an individual, it 
deposes, as to the matter of the contract, its constitutional authority and exchanges 
the character of a legislator for that of a moral agent with the same rights and obliga- 
tions as an individual,'" citing 3 Hamilton's Works, 518; 15 Peters, 392; Deming's 
case, 1 Ct. Cls., 191; 11 id., 520; 28 id., 105. t 

The United States as a contractor can not be held liable for acts of United States 
as a sovereign or legislator. Deming's case, 1 Ct. Cls., 190; Jones v. U. S., 1 id., 383. 
See also Cooke v. U. S., 91 U. S., 398; Curtis v. U. S., 2 Ct. Cls., 152, and 11 id., 520. 

1 Bishop on Contracts, sec. 116. 



CONTRACTS II. 293 

II. An Army officer entered into a contract for the supplying of 
beef in his official capacity and as an agent of the Government. 
Through the fault of the officer the Government failed to carry out 
its part of the contract. Held, that the contract being a Govern- 
ment contract, payment due on it should be made by the Govern- 
ment, and there was no authority for requiring the officer to make 
payment from his personal funds, ^ but that if the Government paid 
lor the beef, wliich through the fault of the officer had become a 
loss, it would be proper to stop the officer's pay to reimburse the 
Government. C. 20612, Nov. 15, 1906. 

Where an officer of the Government entered into a contract in his 
official capacity and as an agent of the Government, it being plainly- 
understood by the contractor that he was not obligating liimself 
personally, lield that he could not be held personally liable to the 
contractor on the contract. If there should be any liability to the 
contractor it would be that of the Government. C. 2601, Sept. 
11, 1896. 

Ill A. Section 3709, R. S., provides "All purchases and contracts 
for supplies or services in any of the departments of the Government, 
except for personal services, shall be made by advertising a suffi- 
cient time previously for proposals respecting the same, when the 
public exigencies do not require the immediate delivery of the arti- 
cles or performance of the service. When immediate delivery or 
performance is required by the pubhc exigency, the articles or service 
required may be procured by open purchase or contract, at the 
places and in the manner in which such articles are usually bought 
and sold, or such services engaged, between individuals.^ Exigencies 
growing out of a state of war, or hostihties with Indians, were prob- 

^ A public agent is not liable on a contract executed by him on behalf of the 
State, even in cases where he had no authority to make the contract; and where his 
authoritj^ depends on a statute all who contract with hira are conclusively presumed 
to know its extent. Hodgin v. Dexter, 1 Cranch, 345, 363; Parks v. Ross, 11 Howard, 
3G2; New York & Charleston Steamship Co. v. Harbison, 16 Fed. Rep., 688. 

2 Sec. 3709, R. S., was amended by the act of Jan. 27, 1894 (28 Stat. 33), in relation 
to "contracts for supplies in the departments at Washuigton. " 

The following acts also relate to advertisement in making Government purchases: 

The act of June 17, 1910 (36 Stat. 531), relates to advertisement for fuel, ice, and 
miscellaneous supplies for executive departments and other Government establish- 
ments in Washington. 

The act of July 5, 1884 (23 Stat. 109), requkes public notice of from 10 to 60 days 
in pufchases of regular and miscellaneous supplies for the Army furnished by the 
Quartermaster's Department and by the Subsistence Department. 

The act of Mar. 2, 1901 (31 Stat. 905), requhes that the purchase of supplies for the 
use of the various departments and posts of the Army and of the branches of the Army 
service shall be made only after advertisement. 

The act of June 12, 1906 (34 Stat. 258), provides that the purchase of supplies and 
the procurement of services for all branches of the Army ser^'ice may be made in open 
market in the manner common among business men when the aggregate of the amount 
required does not exceed $500. 

The act of May 11, 1908 (35 Stat. 125), authorizes the Chief of Ordnance to purchase, 
in such manner as he may deem most economical and efficient, articles of ordnance 
property the character of which or the ingredients thereof are of such a nature that 
the interests of the public ser\'ice would be injured by publicly divulging them. 

The annual appropriation act for the support of the Army since 1886 has provided 
that purchases or horses for the cavalry, artillery, engineers, etc., shall be made after 
competition didy invited, and that no part of the appropriation shall be expended for 
printing unless the same shall be done by contract, after due notice and competition, 
except in emergency. 



294 CONTEACTS III B. 

ably mainly had in view, and it is exigencies of tliis class wliich have 
been considered in the adjudged cases in the Supreme Court and 
Court of Claims.^ It is clear, however, that other exigencies may 
exist requiring that contracts or purchases be made at once or with- 
out the delay incident to advertising for proposals. Thus a loss of 
stores, structures, etc., on hand, caused by an actus Dei or vis major — 
as fire, storm, freshet, or a sudden riot or violent disorder; or a loss 
of suppHes occasioned by the neglect of military subordinates in 
charge; or a failure of a contractor to fulfill a contract for supplies, 
transportation, or other service — might properly be regarded as con- 
stituting an "exigency" under the statute, if of such magnitude or 
injurious consequence to the Army as to necessitate an immediate 
making good of the deficiency.^ The general rule, however, of the 
statute in requiring a notice and invitation to the public as a pre- 
liminary to the awarding of a contract, is founded upon a sound and 
well-considered pubhc policy, and exceptions thereto, especially in 
time of peace, should be recognized as admissible only where, if the 
rule were strictly complied with, the public interests would mani- 
festly be most seriously prejudiced. R. 37, 464, Ayr. 7, 1876; 39, 
627, May 3, 1878. 

Ill B. Section 3709, R. S., does not necessarily preclude having 
public work performed by hired laborers where it is not deemed de- 
sirable to enter into a formal agreement with a contractor for the 
purpose. So, held, that particular work capable of being properly 
done by hired day labor, may be so done, instead of under contract 
made upon advertisement and proposals, provided it is deemed to be 
for the public interest to prefer the former mode. R. 41, 1^^, Feh. 
25, 1878. 

Ill C. An advertisement for bids for certain apparatus specifi- 
cally limiting the bids to a certain make of apparatus is not for that 
reason illegal. C. 11397, Oct 18, 1901. 

Ill D. Specifications referred to in an advertisement for bids 
should definitely describe all the materials and work that are to 
enter into the construction of the building so that each bidder will 
know at the time he bids just what material and work will enter 
into the construction of the building and not merely what might so 
enter. Therefore a specification that required "pink Milford or 
some other light-colored granite satisfactory to the architects and 
hoard of trustees " is insufficient, and the work should be readvertised, 
A proper and sufficient advertisement would be had if a particular 
granite was named or if it was stated that any one of a number of 
kinds (naming them) would be accepted, or that any kind would be 
accepted if it possessed certain qualities (naming them) or had the 

^ See United States v. Speed, 8 Wallace, 83; Reeside v. United States, 2 Ct. Cls., 1; 
Mowry v. United States, id., 68; Stevens v. United States, id., 95; Floyd v. United 
States, id., 429; Crowell v. United States, id., 501; Baker v. United States, 3 id., 343; 
Henderson v. United States, 4 id., 75; Child v. United States, id., 176; Wentworth 
r'. United States, 5 id., 302; Wileox v. United States, id., 386; Cobb v. United States, 
7 id., 470, and 9 id., 291; Thompson v. United States, id., 187; McKee v. United States 
12 id., 504; Moran v. United States, 39 id., 486; 111 Comp. Dec, 17/5. 

2 See G. 0. 10 of 1879, sees. 22-25, pp. 14 and 15; do. 72, id. p. 52; do. 40 of 1880, p. 58. 



CONTRACTS IV A. 295 

qualities possessed by a particular kind of granite (naming it).* 
C. I4I6, June 14, 1895. 

IV A. The contingent fund allotted to the various geographical 
departments comes within the terms of the act of March 2, 1901 (31 
Stat. 905), providing that ''hereafter, except in case of emergency 
or where it is impracticable to secure competition, the purchase of 
all suppHes for the use of the various departments and posts of the 
Army and of the branches of the Army service shall only be made 
after advertisement," and such fund can be expended only after 
advertisement except in case of emergency. C. 11935, Jan. 24, 1902. 
The above act, however, does not apply to the engagement of serv- 
ices. C. 11116, Oct. 16, 1901. 

IV B. Section 4 of the act of June 17, 1910 (36 Stat. 531), mak- 
ing the appropriations for the legislative, executive, and judicial 
expenses of the Government, provided that "hereafter all supplies 
of fuel, ice, stationery, and other miscellaneous supplies for the exec- 
utive departments and other Government establishments in Wash- 
ington, when the public exigencies do not require the immediate 
delivery of the articles, shall be advertised and contracted for by 
the Secretaiy of the Treasury instead of by the several departments 
and estabUshments." Held, that this legislation was not intended 
to require supplies for the Army at large, appropriated for in the 
Army appropriation act, to be included under the contract made by 
the Secretary of the Treasury, and that therefore supplies for the 
Sandy Hook Proving Ground in New Jersey are not covered by 
contracts made by the Secretary of the Treasury. C. 27154, Aug. 
11, 1910. Held, also, that under the same act supplies for the 
United States engineer office, Washington, D. C, and the engineer 
depot and engineer school at Washington Barraclcs, D. C, are not 
covered by the contract made by the Secretary of the Treasury. 

C. 27154, Jan. 10, 1911. But TieU, that under the same act sup- 
plies for the office of Public Buildings and Grounds, Washington, 

D. C, are included in the contract made by the Secretary of the 
Treasury. C. 26982, July 7, 1910. 

V A. Section 3828, R. S., provides that "no advertisement, notice, 
or proposal for any executive department of the Government, or for 
any bureau thereof, or for any office therewith comiected, shall be 
published in any newspaper whatever, except in pursuance of a 
written authority for such piiblicaticm from the head of such depart- 
ment; and no bill for any such advertising or publication shall be 
paid unless there be presented with such bill a copy of such written 

^ In 1905 the Auditor for the War Department called attention to the following para- 
graph in the form of advertisement for bids for supplies for the Signal Corps: "Orders 
will probably be made on the accepted bidders for the estimated quantity; but as the 
actual requirements can not be determined in advance, the right is reserved of mak- 
ing orders at the prices at which the awards may be made for any quantity more, or 
to make no order at all for any item that may not be needed," objecting to the latter 
part of the paragraph as destroying the definite character of the advertisement, and 
stated that m some cases the quantities purchased had been six to nine times the 
quantities named in the advertisement and proposals. Recommended by the Judge 
Advocate General that the fomi be changed to read as follows: "Orders will probably 
be made on the accepted bidders for the estimated quantity; but as tbe actual require- 
ments can not be determined in advance, the United States shall have the right of 
making orders at the prices at which the awards may be made for additional sup- 
plies, provided that the additional orders shall not exceed twice the estimated quan- 
tity." C. 18164, July 6, 1905. 



296 CONTRACTS V B, 

authority." Held, that the written authority recjuired must precede 
the pubhcation. A subsequent approval or ratification will not be 
sufficient.^ C. 17990, May 13, 1905. 

V B. The act of March 1, 1893 (27 Stat. 509), creating the Cali- 
fornia Debris Commission, requires notices of petitions for hydraulic 
mining to be inserted by the "commission in some newspaper or news- 
papers of general circulation in the communities interested." Held, 
that the discretion of selecting the newspapers is vested in the com- 
mission, and that section 3828, R. S., which requires prior written 
authority of the head of the department, does not apply.^ C. 17209, 
Bee. 7, 1904. 

VI A. In general, imder section 3709, R. S., the duty of advertising 
is a legal obligation imposed by statute, not a mere facility for the 
convenience of Government ofhcers to enable them to gain informa- 
tion so that the United States may supply its wants in the most con- 
venient manner and at the lowest cost regardless of the bids.^ The 
main object of advertising is to induce a free and open competition 
for the contracts of the Government and thus to protect the United 
States from fraudulent combinations and collusive preferences in its 
business transactions.* At the same time the advertisement, in 
inviting proposals from the public, is properly to be viewed as a 

1 See V Comp. Dec, 167; XIV id. 747, and par. 508, A. R., 1910. In 16 Op. Atty. 
Gen., 616, it was held that the provision of sec. 3828, R. S., extends to all officers con- 
nected with any executive department, no matter where they may be situated, and 
not merely to such officers as are at the seat of government. See, also, U. S. v. Odeneal 
(10 Fed. Rep., 616; XIII Comp. Dec, 446). 

2 XII Comp. Dec, 119. See, also, XIII idem, 310. 

^ See 6 Op. Atty. Gen., 406; 10 id., 28; also opinion of the Solicitor General of March 
20, 1876 (15 Op. Atty. Gen., 538), wherein, in holding contracts made without adver- 
tising to be not binding on the United States, he dissents from the opinion of Atty. Gen. 
Bates, in 10 Ops., 416, to the effect that while an absence of the prescribed adver- 
tisement will render illegal and inoperative an unexecuted contract, the Government 
can not, on account of such omission, rescind, to the damage of a contractor, a contract 
entered into by him in good faith and partly performed. In a later opinion of Apr. 27, 
1877 (15 Op., 235), the Attorney General refers to the question, whether the provision 
of section 3709, R. S., requiring that contracts in general shall be preceded by adver- 
tisement, is mandatory or only directory, as one which has been much discussed 
(see, for example, the reference to this question in Fowler v. United States, 3 Ct. Cls., 
47), but is not required to be decided in that opinion. In Schneider v. U. S., 19 Ct. 
Cls., 547, 551, it is held that in the absence of any exigency in fact or one determined 
to exist this provision is mandatory, and a contract made in violation of it is void. 
Whatever may be the true construction of this section, it is clear that no officer of the 
Army, in the absence* of express authority to do so from the Secretary of War, can be 
justified in omitting to comply with the provision in regard to advertising. However, 
it was held in Mudgett v. United States (9 Ct. Cls., 467), that where a properly executed 
contract had been mutually performed and the contractor sued to recover a part of his 
compensation, it was not a defense that the contract was illegal because not founded 
upon advertisement and proposals, the price being reasonable. See also Salomon v. 
United States (19 Wall., 17.) In Schneider v. United States (19 Ct. Cls., 547), where 
a contract modifying another contract had been made without advertisement and the 
contractor had subjected himself to expense in preparing to carry out the terms of the 
modified contract, but before actually furnishing material to the United States under 
the modified contract, the modified contract was rescinded by the United States. 
Held, that the modified contract was void, for the reason that there had been no adver- 
tisement, and that the contractor could not recover for his outlay and prospective 
profits under the modified contract. 

* See, Harvey v. United States (8 Ct. Cls., 506). In regard to a statute (similar to 
sec. 3709) governing the Post Office Department, the Supreme Court, in Garfielde v. 
United States (3 Otto. 246), says: "The object of the statutfe was to secure notice, 
* * * that bidders might compete, that favoritism should be prevented, that 
efficiency and economy in the service should bo obtained." 



CONTRACTS VI A. 297 

pledge on the part of the United States that the contract will, as a 
general rule, be awarded to the lowest bidder, provided he is a 
responsible person and his bid is a reasonable one, and provided, of 
course, he complies with tlie existing regulations — as to bond, etc.^ 
The reservation not unfrequently added in the advertisement, that 
"the United States reserves the right to reject any or all proposals," 
is simply precautionary, and should not be, and is not, in general 
taken advantage of except where the lowest bidder fails to meet the 
legal and proper conditions.^ R. 39, 426, Feb. 12, 1878; 41, 113, Feh. 
21, 1878; C. 18153, June 12, 1905. So, also, where the act of March 
2, 1901 (31 Stat. 905), provided that supplies for the Army except as 
therein specified, should be purchased "after advertisement, and 
shall be purchased where the same can be purchased the cheapest, 
quality and cost of transportation and the interests of the Govern- 
ment considered," held that the statute does not require the award 
to be made to the lowest bidder, except where he can satisfy the 
department that he can furnish articles of the required quality and 
within the required time; if the facts leave a reasonable doubt on 
this point the award to the lowest bidder woidd not be in the inter- 
ests of the Government, and he may legally be passed over and an 
award made to the next lowest bidder who can meet these require- 
ments. C. 20276, Aug. 22, 1906. Wliere several bids are made in 
response to the advertisement, the Secretary of War may, for cause, 
refuse to authorize a contract with any of them. In accepting a bid 
he must be governed by a consideration for the public interests. If 
the lowest bidder, for example, is not furnished mth the proper facili- 
ties to perform the proposed work — has not an available plant. ^ (P. 

^ See, regulations in regard to contracts, published in General Orders 10, Headquar- 
ters of Army of 1879, repeated and amended in General Order 72 of same year and 
General Order 40 of 1880, now incorporated in Articles LI and Lll, Army Regulations 
of 1908. 

2 See, paragraph 553, Army Regulations of 1910, as follows: "Except in rare cases, 
when the United States elects to exercise the right to reject proposals, awards will be 
made to the lowest responsible bidder, pro\'ided that his bid is reasonable, and that 
it is in the interest of the Government to accept it." 

^ Paragraph 555, Army Regulations of 1910, is as follows: "When no guaranty is 
required, bidders must, if called upon by the awarding officer, furnish satisfactory 
evidence, before the award is made, of their ability to carry their proposals into effect. ' ' 

In General Orders 1C7, War Department, October 10, 1905, the following instructions 
were issued by the Secretary of War for the guidance of officers charged with the 
procurement of supplies : 

With a ^dew to a thorough enforcement of the laws which require that all supplies 
for the Army shall be purchased "where the same can be purchased the cheapest, 
quality and cost of transportation and the interests of the Governvient considered," and 
that "such contracts shall be made with the lowest responsible bidders," the following 
instructions are published for the information and guidance of officers charged with the 
procurement of supplies for the several branches of the military establishment, and 
strict compliance therewith is enjoined, viz: 

1. Advertisements for supplies should contain the instruction to bidders, who are 
not manufacturers of the goods called for, to submit the name of the manufacturer 
from whom such goods are to be obtained, unless it be manifestly impracticable to 
furnish this information. 

2. Lack of commercial standing on the part of the bidder or inadequate facilities or 
plant on the part of the manufacturer will constitute good and sufficient grounds for the 
rejection of bide. Abnormally low bids should be subjected to the strictest scrutiny 
and comparison with prevailing market rates. 

3. All bids received from contractors who have failed unjustifiably to fill former 
contracts with the Government shall be rejected. 



298 CONTRACTS VI B. 

58, 26, Feb. 10, 1893) or if (the bids being for a boiler) the article cov- 
ered by the lowest bid does not represent as high a grade of efficiency 
as a higher bid, the article covered by the higher bid being such 
that, in the opinion of the contracting officer, it would in a compara- 
tively short time save its additional cost in the saving of fuel. 0. 
25493, Aug. 28, 1909, the lowest bid may be passed over for the next 
higher provided the latter is satisfactory. 

VI B. An act of Congress of June 30, 1886 (24 Stat. 96), appro- 
priated a sum of money ''for printing division and department orders 
and reports. * * * Provided, that no part of this appropriation 
shall be expended on printing unless the same shall be done by con- 
tract after due notice and competition." Held, that all such printing 
should, after advertisement (due notice), be given to the lowest 
responsible bidder who is a practical printer and who is in a position 
to do printing unaided by the Government. It would not be a com- 
pliance with the statute to purchase paper, ink, type, etc., and let by 
contract only the mere printing. P. 61, 334, Seyt. I4, 1893. 

VI C. The act of April 10, 1878 (20 Stat. 36); as amended by the 
act of March 3, 1883 (22 Stat. 488), authorizes the Secretary of War 
to make rules and regulations as to bids, bonds, and contracts under 
the War Department and to require a written guaranty providing 
that in event of default of the bidder to enter into the contract and 
give sufficient bond the proper "officer shall proceed to contract 
with some other person * * * ^nd shall forthwith cause the 
difference * * * to be charged against the bidder and his 
guarantor." Section 3 of the river and harbor act of August 1 1 , 1888, 
(25 Stat. 423), provides that "contracts for improvement of rivers and 
harbors shall be made with the lowest responsible bidders." Held 
that these statutes should be construed together, so that in a case 
where a contract had been awarded to the lowest responsible bidder 
in compliance with the act of 1888 and such bidder had defaulted 
in entering into tlie contract, the act of 1878 as amended would come 
into play and authorize a contract 'Svith some other person," the 
difference to be charged to the defaulting bidder. These acts do not 
require the Government to let a contract. to the next lowest bidder 
after the lowest bidder has declined to enter into the contract. 0. 
22567, Feb. 17, 1908. 

VI D. The Army appropriation act of July 5, 1884 (23 Stat. 109), 
provided that, in purchasing supplies for the Army under the Quar- 
termaster and Commissary Departments, the award should be made 
to the "lowest responsible bidder.^' ^ Wlien the award for furnishing 
such supplies was not made to the lowest bidder, thoudi entirely 
responsible and competent, but a higher bidder was preferred, Tield 
that the contract was void. P. 18, 265, Aug. 5, 1887. 

VI E. Wliero an advertisement inviting proposals for furnishing 
supplies specified that the proposals would be opened at a certain 
hour, liela, that ordinarily a bid received after the hour named 
should not be considered. P. 47, 403, June 6, 1891. But if it satis- 
factorily appears that a bid, received after the hour for opening bids, 

* Par. 553 of Army Regulations, 1910, relating to the purchase of supplies, is as 
follows: "Except in rare cases, when the United States elects to exercise the right to 
reject proposals, awards will be made to the lowest responsible bidder, provided that 
his bid is reasonable and that it is in the interest of the Government to accept it." 



I 



CONTRACTS VI E, 299 

had been duly mailed ^ or a messenger had started with it, in ample 
time to reach its destination before the opening of bids, that its fail- 
ure to arrive on time is in no manner due to the neglect of the bidder, 
and above all that no unfair advantage has accrued to the tardy bid- 
der by reason of his delay,^ the delayed bid should be considered.' 
C. 204I6, Sept. 18, 1906; 21391, Apr. 16 and July 30, 1907; 22376, 
Nov. 20, 1907; 23888, Sept.' 25, 1908; 2I,.914, May 8, 1909; 25135, 
June 19, 1909; 26397, Mar. 24, 1910; 28204, Apr. 26, 1911. So 
held where a bid was received three days late. C. 16342, May 18, 
1904' So held, also, where a bid was mailed in ample time but was 
returned for want of sufficient stamps, and was then remailed without 
opening it, consideration being given to the fact that in the usual 
course of dealings between private parties the addressee would pay 
the trifling amount of postage. 0. 27681, Ja,n. It, 1911. So, also, 
where a bidder finding the time too short for his bid (which had been 
mailed) to reach the officer charged with opening the bids, tele- 
graphed his prices, held, that as the bid was deposited in the mail 
before the opening, and the bidder acted in good faith and obtained 
no unfair advantage over other bidders, it was recommended the 
requirements of the Army Regulations that no proposal received 
after the time of opening w^ill be received, be waived. C. 25208, 
June 28, 1909; 26005, Dec. 30, 1909. Where the messenger carrying 
the bid missed the train and wired to the officer in charge of" the 
opening of bids that he w^ould be on next train, and the circumstances 
showed that the bidder had obtained no unfair advantage by the 
delay, held, the bid should be received. C. 17828, Apr. 8, 1905. 
Where bids for the purchase of condemned ordnance were required 
to be accompanied by a check for the amount of the bid, and the 
sealed envelope supposed to contain one bid on being opened was 
found to contain only the check, and the bidder subsequently handed 

1 Par. 547, Army Regulations, 1910, has been amended by par. 2, General Orders, 
No. 99, War Department, July 22, 1911, to read as follows: "Proposals received 
prior to the time of opening will be securely kept. The officer whose duty it is to 
open them will decide when that time has arrived. No proposal received thereafter 
will be considered, except that when a proposal arrives by mail after the time fixed 
for the opening, but before the award is made, and it is clearly shoAvu that the non- 
arrival on time was due solely to delay in the mails for which the bidder was not 
responsible, such proposal will be received and considered." All the opinions cited 
in the above paragraph antedated the above amendment to par. 547, Army Regulations. 

2 The syllabus in 21 Op. Atty. Gen. 546, is as follows: "There is nothing in the acts 
of January 27 and April 21, 1894, amending section 3709 of the Revised Statutes, incon- 
sistent with the legal right of the board of award of the Department of Agriculture to 
consider any bid received by them through the mail after the hour of 2 o'clock p.m. 

"The designation of 2 o'clock p. m. 'for the opening of all such proposals in each 
department' means only that such proposals shall not be opened before 2 o'clock p. m. 
'A proposal received after that hour, under circumstances which wan-anted the 
belief that it had been prepared and submitted in the light of the proposals submitted 
by other bidders, which had been already opened and made known, should not be 
received or entertained; but a proposal received under conditions which precluded 
the possibility of such unfairness should not be rejected because it happens to be 
received by the board of award a few minutes after 2 o'clock p. m." 

^ Even though a bid has failed to reach its destination through the fault of the bid- 
der a contract with such bidder without further advertisement would not be illegal, 
for such action would be equivalent to a rejection of all bids, and if all bids are rejected 
further advertising is unnecessary, and a contract could then be entered into with the 
tardy bidder. Such a course, however, should not be pursued if it would be unfair to 
other bidders or would involve a breach of the implied pledge on the part of the 
United States that the contract will as a general rule be awarded to the lowest bidder 
provided he is a responsible person and his bid is a reasonable one, etc. 



300 CONTBACTS VI F. 

in the bid for tlie exact amount of the check, and it satisfactorily 
appeared that the omission to inclose the bid was accidental and that 
the bidder gained no advantage by the accident, held, that the bid 
could legally be considered. C. 11609, Nov. 16, 1901. A clause in 
the advertisement for bids providing that "no bids received after 
the time set for opening of proposals will be considered'' will not 
prevent consideration of the bid if the circumstances otherwise excuse 
the delay. C. 7653, Feb. 7, 1900. But where a bid was mailed so that 
it had only a narrow margin of time to enable it to reach its destina- 
tion before the hour for opening bids, and the envelope was not 
marked so as to indicate the nature of its contents as required by 
instructions to bidders, and the bid did not reach its destination in 
time, Md, that it should not be considered. C. 210^7, Feh. 4, 1907. 

VI F. Pro])Osals were invited for construction of six locks and dams 
on the Monongahela River and the specifications provided as follows : 
"Bids will be received for the lock and dam complete at any one site, 
or at two or more sites, or at all six sites, and if accepted contracts will 
be awarded for each site separately or for two or more sites, or a single 
contract will be awarded for the whole improvement at the six sites as 
may appear most economical and advantageous to the United States." 
One of the bidders in a letter attached to his proposal offered, if 
awarded contracts for three of the locks and dams, to accept at a 
reduction of 3 per cent on the amount proposed for them separately; 
if awarded four locks and dams, the reduction should be 4 per cent, 
and if awarded contracts for the six locks and dams a reduction of 5 
per cent could be made. Held that the offer made in this letter was 
responsive to the specifications calling for proposals and should be 
treated as a part of the proposal. C. 3488, Sept. 7, 1897. 

VI G. Wliere a bidder failed to sign his bid and attach the necessary 
internal-revenue stamps to the bid, but it was evident from the fact 
of a formal execution of an accompanying guaranty that it was 
intended to sign the bid and attach the stamps. Held, the bid could 
properly be signed and the stamps attached after the opening of the 
bids. C. 10361, May 4, 1901; 22874, Mar. 12, _ 1908. So, where a bid 
was not signed but before the opening of the bids a letter was received 
from the bidder stating that the bidder was not sure whether the bid 
had been signed before mailing it, and stating that the bidder would 
stand by it, and the accompanying guaranty was properly executed. 
Held, the bidder was bound under the terms of the guaranty. C. 
23878, Sep. 21, 1908. 

VI H. Where a bidder's name was signed to a bid by another per- 
son. Held that verbal authority to sign the name was sufficient. 
C. 580, Oct. 29, 1894. 

VI I. Wliere bids were invited for furnishing blue denim, the 
specifications providing that "a sample of not less than 20 yards of 
the material which bidders propose to furnish must be submitted 
prior to the time fixed for the opening of bids, and no samples will be 
received after the proposals are opened," and the lowest bidder 
through an oversight failed to furnish a sample at the time of submit- 
ting his bid, but a sample was offered within an hour or two after the 
opening of bids, and where it further appeared that the lowest bidder 
had been furnisliing denim under a prior contract, and that the 
sample offered was up to the specifications and of the same kind fur- 
nished under the previous contract, held that the failure to file a 
sample before the opening of bids was an informality which could be 
waived. G. 25021, May 26, 1909. 



CONTRACTS VI J 1. 301 

Bids were requested for furnishing file cases of a certain make "or 
equal," and the instructions to bidders required that samples of the 
proposed equivalent must accompany the proposal. Several bids 
were not accompanied by samples, field, that the failure to furnish 
samples was an informality which might be waived, and samples 
might be called for prior to making awards, as such action would not 
give any opportunity for collusion and would not be unfair to other 
bidders. In such case the guarantors would be bound, although the 
bids had not been accompanied by samples. C. 20196, Aug. 10, 1906. 

A clause in the instructions to bidders provided that ''reasonable 
grounds for supposing that any bidder is interested in more than one 
bid win be cause for rejection of aU bids in which he is interested." 
Held, that if any bidder is interested in more than one bid the con- 
tracting officer is not by the above mstruction required to reject the 
bid, but the clause in question may be waived. C. 19967, June 26, 
1906. 

Wliere a bidder faUed to attach a copy of the specifications to his 
bid, but the bid referred to the specifications m such a way that there 
could be no question that the bidder oftered to furnish such supplies 
as were called for by the specifications, Jield, the failure to attach a 
copy of the specifications did not aft'ect the validity of the bid and 
might be waived. C. 23552, July 7, 1908. 

Instructions to bidders required bidders to submit alternative bids 
m respect to certain parts of a building, dependmg on the material to 
be used. The purpose of this requirement was to enable less expen- 
sive substitutions to be made for the said parts of the building in case 
the bids exceed the appropriation. The lowest bidder failed to make 
the required alternative bids, but his bid was within the appropriation. 
Held, that under the circumstances failure to submit alternative bids 
was an informality which could be waived. C. 24769, Apr. 15, 1909. 
So, held, where bidders wee required to state the unit prices for exca- 
vation, concrete and brickwork, the purpose being to have a basis for 
settlement for any work ordered less than or m excess of tha,t indi- 
cated on the drawings, and the lowest bidder failed to submit such 
prices. C. 24-769, Apr. 15, 1909. Also, where the lowest bidder for 
certain dredging failed to state the price for rock excavation, and it 
appeared that the rock excavation was an insignificant part of the 
entire work, bemg less than two-tenths of 1 per cent, and that the 
difference between his bid and the next lowest bid was more than 10 
per cent, and the lowest bidder stated that it was his mtention to 
include aU work under the miscellaneous item of his bid: Held,, that 
the informalitv in failing to bid on the rock excavation could be 
waived.^ C. 28603, June 26, 1911. ^ 

Wliere proposals were invited in duplicate and the lowest bidder 
submitted only one copy: Held, the failure to submit bids in duplicate 
was an informality which could properly be waived. G. 15574, Dec. 
2, 1903. . _ 

VI J 1. A readvertisement of work is equivalent to a rejection of all 
bids not theretofore accepted. C. 26565, Apr. 20, 1910. 

VI J 2. The acceptance of one bid is a rejection of all other bids, 
and one of the bids^ so rejected can not be subsequently accepted so 

» See State v. Commissioners of York County, 13 Nebraska, 57 (12 N. W. 816). 
2 As to acceptance with qualification, etc., see U. S. v. P. G. Carlin Construction 
Co. and Illinois Surety Co., 1912. 



302 CONTRACTS VI J 3. 

as to hold a guarantor of such rejected bid to his guaranty that 
such bidder would enter into a contract within ten days after notice 
of acceptance of his bid. C. 8904, Sept. 6, 1900; 20670, Nov. 26, 1906. 

VI J 3. The effect of a rejection of all bids is to release the guar- 
antors on all the bids, and the guaranties can not be revived by a 
mere letter consenting to their revival. The only proper way is to 
have a new set of bids called for to be accompanied by new guaranties. 
C. 26846, June 7, 1910. 

VI J 4. A sound discretion is vested in the contracting officer, 
subject to approval by higher authority, to determine under all the 
circumstances of a letting of a particular contract whether the 
interests of the United States will be best subserved by awarding 
the contract to one bidder instead of to another, i. e., whether in the 
light of all the facts he is the "lowest responsible bidder." Held, on 
the above principles that where a contractor attempts to deliver 
inferior articles and causes delay by such attempts, and having been 
balked in liis efforts by the vigilance of the contracting officer and 
having thereupon made charges against the contracting officer 
which on investigation were found to be false, these facts would 
justify the award being made to the next lowest bidder on the ground 
that his bid is that of the ''lowest responsible bidder." C. 18166, 
June 16, 1905; 28861, Aug. 16, 1911. 

The United States may properly reject a bid in a case oi fraud, as 
where the lowest bidder is m collusion with other bidders or with the 
representative of the United States to impose a high price upon the 
Government. In such a case the bids of all bidders concerned in 
the fraud may properly be rejected even in the absence of a regula- 
tion or statute on the subject. R., 37,^ 564, ^^y 24, 1876. So, 
also, the bid of a contractor who had previously conspired to defraud 
the United States {C. 7134, Oct. 5, 1899) or of a firm one member of 
which conspired to defraud the United States {C. 8606, July 13, 1900) ; 
or of an individual who was a member of a firm one member of 
which had been debarred from bidding on account of collusion, the 
circumstances being such as to make it certain that the bid was 
not a honajide individual bid, but would'innure to the benefit of the 
firm. C. 13485, Feb. 10, 1903, may properly be rejected. But the 
mere fact that a bidder. A, states that certain supplies on which he 
has bid will be made by a certain firm, the senior member of which, 
B, had been disqualified as a bidder sometime before by reason of his 
implication in a conspiracy to stifle cony^etition, is not sufficient to 
justify rejection of A's bid. C. 23552, July 7, 1908. 

One of the bids for furnishing shoes was submitted by A as an indi- 
vidual. A was in fact the vice president of a large shoe company, 
and stated m his bid that in case he was awarded the contract the 
said shoe company would manufacture the shoes. A's bid was for 
"all or none." Ajnother of the bids was submitted by B as an indi- 
vidual. B was in fact a director in the same shoe company, and 
stated in his bid that in case the contract was awarded to him said 
shoe company would manufacture the shoes. B's bid was a graduated 
one. The prices named in the bids of both A and B were very low. 
A protesting bidder charged that the two bids were really submitted 
on behalf of the shoe company, so that if the bid that stipulated for 
"all or none" of the work was rejected the company would get at 
least a part of the award under the other bid. Held that even if the 






CONTRACTS VI J 5. 303 

charges were true the facts would not constitute a fraud on the United 
States, and would not justify the rejection of the bids. C. 27496, 
Nov. 16, 1910. 

VI J 5. Section 3 of General Order 167, War Department, Octo- 
ber 10, 1905, directs that "all bids received from contractors who 
have failed unjustifiably to fill former contracts with the Government 
shall be rejected." Held that where a company of high standmg in 
the business community once had declined to enter into a contract 
on the ground that it had misunderstood a certam phase of the Gov- 
ernment's proposal and m another instance had failed to deliver 
shingles and lumber at Honolulu within the tune specified ui the con- 
tract, the company could not be said to "have failed unjustifiably" 
to fill its former contracts. C. 29175, Oct. 26, 1911. Also held that 
under the above section of General Order 167, War Department, 1905, 
it is questionable whether an attempt to deliver inferior goods could 
properly be regarded as an unjustifiable failure to fill a former con- 
tract. C. 28861, Aug. 16, 19li. 

VI J 6. A clause in the mstructions to bidders provided that "rea- 
sonable grounds for supposing that any bidder is interested m more 
than one bid will be cause for rejection of all the bids in which he is 
interested." Held, that the interest referred to was an mterest as a 
bidder, not as a manufacturer or seller of supplies to a bidder, and that 
a manufacturer who has quoted prices on his specialty to one of the 
bidders is not thereby disqualified from himself submittmg a direct 
bid for the same article. 0. 19967, June 26, 1906. 

VI J 7. \\liere, after a contract for quartermaster stores had been 
duly subscribed and entered into by and between the lowest bidder 
and the proper official representative of the Government, it was ascer- 
tamed that the former had failed fully to perform a certain contract 
sometime previously made between hunself and the United States, 
held that this fact could not authorize the Secretary of War to cancel 
the contract thus formallv executed and enter into a new contract 
with another party.^ R. 41, 258, June 10, 1878. 

VI K. A bidder is not entitled to be furnished by the War Depart- 
ment or any of its officers with the prices of other bidders. A bidder 
having had the privilege of being present at the opening of the bids 
and making such memoranda as he wishefl has been accorded every 
right which he can demand from the War Department, and it would 
not be proper to employ government labor in furnishing the desired 
prices. A copy of any bid may, however, be obtamed from the 
returns office of the Interior Department under the provisions of 
section 515, R. S. C. 26895, June 18, 1910. 

VI L. Where a bidder offers to furnish supplies or render services at 
a different place from that stated in the advertisement, however con- 
venient the place named mav in fact be to the military authorities 
{R. 39, 425, Feb. 12, 1878^41, 113, Feb. 21, 1878); or at a time 
different by five months from that stated in the advertisement (P. 56, 

» In G. O. 167, W. D., Oct. 10, 1905, the Secretary of War directed that all bids 
received from contractors who had failed unjustifiably to fill former contracts with the 
Government should be rejected. (See 28 Op. Atty. Gen., 389, to the effect that if a 
bidder had previously been in default the bid may be rejected, but held further, that 
an adjudication that a person or contractor is a party to an unlawful trust or monopoly 
from which decree an appeal has been taken is not sufficient to exclude such person 
or corporation from competition in the sale of supplies to the Government. (See Cir. 
76, W, D., Nov, 29, 1910.) 



304 CONTRACTS VI M. 

356, Nov. 18, 1892) ; or in quantity different from than that stated in 
the advertisement {R. 39, 1^25, Feb. 12, 1878), tlie variance is material, 
and such a bid should not be entertained; to let a contract on such a 
bid would be in effect to make a contract without advertising.^ So, 
where bids were invited for supplying lumber at some port of the 
Pacific coast accessible to vessels of deep draft, the purpose of the 
Government being to subsequently transport the lumber to Manila, 
and a bid was received to supply the lumber at Manila, held that such 
a bid could not be considered, as it was not responsive to the adver- 
tisement. C. 26044, Jan. 10, 1910. 

Bids were invited for a "steel observation tower." One of the bids 
was for a "concrete observation tower," and a contract was proposed 
to be entered into for one of concrete. Held that such a contract 
would be without competition such as contemplated by section 3709, 
K. ^ C. 20301, Aug. 29, 1906. 

A bid for the construction of a tank and trestle purported to be 
"subject to all the conditions and requirements" of the advertise- 
ment and circular of instructions, but there was added on the printed 
form in typewriting, after the price, the following words: "Design to 
be as per blue print marked contract No. 4310, copy of which is 
attached." The blue print provided for footings thirteen feet square, 
while the advertisement called for footings twenty feet square. Held 
that the bid should be construed to cover footings of only thirteen 
feet square. C. 27569, Dec. 9, 1910. 

VI M. Bids were invited to supply 65,000 chambray shirts, along 
with other supplies, the advertisement stating that "the right is 
reserved to reject or accept any or all proposals or any part thereof." 
The instructions to bidders stated that "time of deliveries will be 
considered in making the awards" and bidders were required to state 
the times and amounts of deliveries. The lowest bid was for 46J 
cents per shirt, the next lowest bid being for 50^ cents. The lowest 

* In an opinion under an act of 1843 (similar to the existing law) requiring the letting 
of contracts in the Navy upon advertisements for proposals, it was held by Atty. Gen. 
Nelson (4 Op., 334) that the Navy Department was not authorized, ' 'in awarding the 
contract to the lowest bidder, to modify its terms, as proposed for, in regard to the time 
of delivery, or any other of its material elements. The obvious purpose, " he adds "of 
the act in question was to invite competition in the proposals; and it therefore requires 
that the advertisement emanating from the department shall particularize every- 
thing that may essentially affect the contract. That the time of delivery may be, in a 
contract of this description, a material element the circumstances connected with 
this case clearly evince. Non constat, if the time had been extended, as now proposed, 
on the face of the advertisement, that other and lower offers than were received might 
not have been made. It may well be that a manufacturer may not be in a condition 
to deliver at one time and yet be fully capable of doing so at another; and that, whilst 
he would be restrained by this inability from competing for a contract within the time 
limited by the proposals, he might have successfully done so had the extended time 
been advertised." (See, also, VII Comp. Dec, 92, 95.) In Schneider i'. U. S. (19 Ct. 
Cls., 547, 551) the syllabus is as follows: "Where one contract is to furnish sandstone for 
a public building at a designated price and another is to substitute marble at a different 
price, the material being the sole subject matter of either agreement, the latter contract 
can not be regarded as a modification of the former; it requires a new advertisement. ' ' 
(See, also, 15 Op. Atty. Gen. 538.) In 20 Op. Atty. Gen., 496, where an advertisement 
was published calling for proposals for performance of certain work for the Government 
with the specification that it be begun on or before Oct. 1, 1892, and be concluded on 
or before Dec. 31, 1893, and one of the proposals stated that the bid was that the entire 
work was to be completed on or before June 1, 1894, and provided for stopping that 
work in certain contingencies: Held that the modifications made in the proposals 
were inconsistent with the specifications and with the spirit and intent of section 3709, 
R . S . , and with the river and harbor act of 1888 . (25 Stat . 423 . ) 



CONTRACTS VI N. 305 

bid stated that it was made "in accordance with your advertisement 
and circular of instructions." As the rate of delivery proposed by 
the lowest bidder was not fast enough the Government decided to 
distribute the work between three companies, and the lowest bidder 
was offered a contract for the manufacture of 35,000 at the same rate 
stated in the bid. The company refused the contract at so low a 
rate, insisting that the bid was made low so as to get the entire con- 
tract. The work was awarded elsewhere. Held, that it was doubtful 
whether the reservation by the Government of the right to '^ accept 
any or all proposals or amj part thereof^ would make an award of a 
part only of the shirt item responsive to the bid, but that the language 
of the reservation might be construed to refer to the acceptance of 
one of several items proposed to be furnished. C. 19523, Ayr. 17, 
1906. 

Bids were invited for furnisliing 1,800,000 pounds of oats during 
the fiscal year. The bid of the lowest bidder was accepted at the price 
stated in the bid, but only for 450,000 pounds, the intention being 
to accept the bid for such quantity only as would be sufficient to 
supply the needs of the Government for the period from July 1 
to September 30, after which period prices would be lower because 
of the new crop. The bidder refused to enter into a contract and 
the Government purchased elsewhere in open market at a price in 
excess of the price of the bid. Held, the bid was to supply oats as 
needed during the year and that the acceptance was not of the bid 
as made, and therefore recovery could not be made against the 
guarantor of the bid for the excess of cost of the oats. C. 21924, Aug. 
24, 1907; 21878, Aug. 5, 1907. 

An advertisement for bids stated that ''the right is reserved to 
reject any or all bids or parts thereof, and to waive defects," and 
required that the bids "be accompanied by a satisfactory guar- 
anty * * * that the bidder will execute a contract, with good 
and sufficient bond, if his bid be accepted for any or all the articles." 
The form of guaranty that actually accompanied the bids provided 
that the bidders would enter into contract and bond "if their hid 
be accepted." Held, that the guaranty did not become effective 
unless tne bid as a whole was accepted and that the bidder could 
legally refuse to enter into a contract for part only of the items bid 
on.i C. 1583, July 26, 1895. 

VI N. The circular inviting bids contained the following provi- 
sion: "If prices stated by bidders are based on minimum sliipments, 
the amount of the minimum shipments must be clearly stated in the 
bid." The lowest bidder stated that his bid was based on minimum 
shipments of 200,000 pounds, and after the opening of bids requested 
permission to amend his bid by eliminating the provision as to 
minimum shipments. Held, that such an amendment would make a 
material change in the bid and is not authorized, but that if the 
amendment was permitted a contract made with such bidder would 
not be illegal. 0. 26905, June 17, 1910. 

VI O. Bidders for certain quartermaster's stores were advised 
that "unless a bidder distinctly states otherwise, in his proposal, 
it will be assumed that he will accept award of all or any part of the 
quantity on which he bids." One bidder named distinct prices 

' See U. S. V. McAleer, 68 Fed. Rep., 146, to same effect. 
93673°— 17 20 



306 CONTEACTS VII A 1. 

for the several items lie bid on and made no mention that he would 
accept award for all or none. This bidder claimed his Did should be 
construed as for the entire lot only;. Held, that the contracting 
officer was justified in construing the bid to be for the items severally. 
C. 27676, Jan. 17, 1910. 

VII A 1. Section 3709, R. S., provides that "all purchases and 
contracts for supplies or services m any of the departments of the 
Government, except for personal services" shall be made by advertis- 
ing for proposals "when the public exigencies do not require the imme- 
diate delivery of the article or performance of the service." Held, 
under the above provision that where a contractor failed in the per- 
formance of his contract, at a critical stage of an important and much- 
needed public work, and at a time of the year when, if the delay were 
incurred of advertising anew, there would be risked a loss of the 
appropriation; and a greatly mcreased charge to the United States, 
as well as serious embarrassment to the military service would be 
involved, the situation might properly be viewed as an "exigency" 
justifying an immediate contract for the continuance of the work. 
R. 42, 339, June 24, 1879. 

Under the provisions of section 3709, R. S., where, notwithstand- 
ing that Congress had failed to make appropriations for the fiscal 
year and no extra session had been convened for the purpose of having 
the omission supplied, there remamed ample time for advertising 
for proposals for certahi contracts for supplies before the supplies 
themselves would be needed, held, that the circumstances did no't 
justify a dispensing with the general rule prescribed by the statute, 
especially smce, by the authority of section 3732, R. S., contracts 
for these supplies could legally be made in the absence of an appro- 
priation. R. 39, 527, May 3, 1878. So, held, that it was no excuse 
tor a noncompliance with the statute, that contracts made without 
advertisement had been made with the most reliable parties and to 
the advantage of the United States. R. 39, 84, Dec. 27, 1876. And, 
held, that the requirement as to advertising for proposals must be 
complied with in contractmg for a supply of articles purchased for 
trial, equally as if the contract were for the regular vearly supplies. 
R. 37, 464, Apr. 7, 1876. Held, also, that the fact that a contractor 
for work cannot complete his contract without losmg money and de- 
sires to abandon it does not constitute a public exigency. R. 50, 
76, Feb. 26, 1886. 

VII A 2. While existing law leaves to the heads of the several staff 
departments the duty of supervising all contracts and purchases made 
in their respective departments, it does not require them to determine 
whether in a particular case an emergency exists, but imposes upon 
the officer charged with the duty of making the purchase the discre- 
tion to determine whether an emergency exists.^ C. 14303, Mar. 21, 
1903. 

' As to the authority who is to decide whether there exists such an exigency as is 
contemplated by the statute, the Supreme Court, in United States v. Speed, 8 Wal- 
lace, 83, has held that it is "the officer charged with the duty of procuring supplies 
or services who is invested with this discretion. " This description is rather general, 
nor is the term "the ])urchasing officer," by which the Court of Claims explains it, 
in Thompson v. United States, 9 Ct. Cls., 196, a much more precise definition. It is 
clear, however, that a subordinate officer charged with the duty of being the imme- 
diate re])reRentative of the United States in a contract or purchase should not, in 
general, venture to dispense with advertising, on the theory of the existence of a 



CONTKACTS VII B. 307 

The commanding officer of a post who had no duty to perform in 
connection with procuring the supphes, except to make a requisition 
for them, has no authority to determine whether there was such an 
exigency as would make advertising unnecessary. C. 16290, Oct. 5, 
190S. 

Where there is doubt as to the existence of an emergency the con- 
templated purchase should be referred to higher authority if the cir- 
cumstances will permit of delay. Where, however, the Secretary of 
War could have authorized an exigency purchase before it was made 
he may, if in his judgment the public exigency existed, approve the 
expenditure after it has been made. C. S48I, Sept. 1, 1897; 15290, 
Oct. 5, 1903. 

Where the officer charged with the duty of making the purchase has 
certified that a public exigency existed wliich would not admit of the 
delay incident to advertising, and the papers in the case do not nega- 
tive such a certificate. Recmnmended, that the purchase be approved. 
a 11473, Oct. 31,1901. 

VII B. Wliere elevators were to be installed in the War Depart- 
ment under the act of February 3, 1905 (33 Stat. 663), making an 
appropriation "for a pair of new elevators," the statute imposing no 
restriction upon the letting of the contract except by limiting the cost, 
held that inasmuch as the work is not, strictly speaking, under '' any of 
the departments of the Government" within the meaning of section 
3709, K. S., it is doubtful whether advertising is required.^ 0. 18153, 
June 12, 1905. 

Held that the purchase of the gray cloth used for the uniforms of 
the cadets of the Military Academy was not a purchase of supplies 
"in the War Department" in the sense of section 3709, 11. S., and 
was therefore not required to be made by advertising. This section 
has apparently in view purchases of supplies for the uses and purposes 
of the United States, under aj^propriations made specifically for such 
supphes or clearly applicable to them and expended as public funds 
under the control and direction of the head of a department. The 
cadet clothing is purchased not as "supplies" for the Army in gen- 
eral, but for the special use of a particular class of persons, and is 
Eaid for, not out of an appropriation for the military establishment, 
ut out of their monthly pay. The continued usage of a department 
in regard to any transaction is an important factor in the construction 

public exigency, in the absence of instructions or orders from a proper superior. 
Nor, on the other hand, will a superior officer, in entering into a contract for his 
command or branch of the service, pro]>erly assume that an "exigency" exists author- 
izing him to dispense with the statutory forms, when the period is time of peace and 
no imperative necessity exists for the immediate delivery of the supplies or jierform- 
ance of the service proposed to be contracted for. It is to be noted that the cases 
both of Speed and Thompson related to contracts entered into dming the Civil War. 
In the instructive opinions of the Attorney General on the "Fifteen per cent Cont- 
tracts" of Apr. 27 and May 3, 1877 (15 Op., 235, 253), it is held that the "exigency" 
contemplated by the statute can be one of time only, and that it can be regarded as 
existing only where an immediate delivery or performance is required by a public 
necessity. 

See, however. III Comp. Dec, 470; 5 id., 64. 

' See VIII Comp. Dec. , 128, holding that Spanish Claims Commission was not attached 
to any "executive department " and therefore did not come under sec. 3709, R. S., 
as amended. See, also, XV Comp. Dec. , 606, holding Library of Congress is not attached 
to an "executive department." 



308 CONTRACTS VII C. 

of the law relating thereto/ and for upward of fifty years the cloth- 
ino; in question has been purchased in open market from a particular 
mills company. Advised that such usage might be continued without 
contravention of existing law. P. 4^, 198, July 13, 1891. 

VII C. The word ''supplies" as used in section 3709, R. S., includes 
gun carriages purchased for the use of the Gettysburg National Park 
Commission.2 C. 15268, Sept. 16, 1903. 

Under the act of March 9, 1906 (34 Stat. 56), for the marking, etc., 
of the graves of the Confederate dead who died in northern prisons, 
etc., it was proposed to erect a monument. Held, that it is ques- 
tionable whether a contract for the erection or repair of a monument 
in the execution of the above statute would constitute a contract for 
"supphes" within the meaning of section 3709, R. S. C. 19834, 
May 24, 1910. 

VII D. "Personal services," within the meaning of section 3709, 
R. S., are services to be rendered in person by the party or parties 
who contract to furnish them whether' the character of the services 
are skilled or not.^ So, held, that services of physicians, services of 
washerwomen, services in repairing mattresses, bedsteads, clocks, 
chairs, etc., and in hauling rubbish, ashes, etc., if to be rendered in 
person by those who contract to perform them, are "personal serv- 
ices" within the meaning of this section. C. 653, Nov. 22, 1894; 
10967, Aug. 5, 1901; 16493, June 18, 1904. Laundry work to be 
done at a steam laundry where the contractor does not perform the 
work in ])erson°is not "personal services." C. 10783, July 1, 1901; 
I6493, June 18, 1904- 1 he fact that certain work is to be paid for by 
the job does not prevent it being "personal services." C. 10967, 
Aug. 5, 1901. 

1 2 Op. Atty. Gen. 558; 4 id. 467, 470; 10 id. 52. 

^ See VII Conip. Dec. where it was held that the word "supplies " as used in appropria- 
tion acts applied to such only as are required for annual consumption. In III Digest 
Decisions of 2d Comptroller, p. 288, it is said: "The word 'supplies' as used in sec. 
3709 of the Revised Statutes, evidently has reference to those things which the well- 
known needs of the public service will from time to time require in its different branches 
for its successful and efficient administration, and the statute was intended to afford 
the Government the pecuniary benefits, as well as the protection against fraud and 
favoritism which open and honest competition is always likely to secure." In Gleason 
V. Dalton, 5 N. Y. Supp., 337; 28 App. Div. 555, it is said " 'Supplies' as used in refer 
ence to a city, in its broad etymological sense embraces anything which is furnished 
to a city or its inhabitants; but as used in sec. 419 of the Greater New York charter, 
requiring competitive bids for supplies, it has no application to contracts for furnishing 
water to the inhabitants of New York." So, also, in Farmers' Loan & Trust Co. v. City 
of New York, 17 N. Y., Super. Ct. 89, it was held that the use of a pier hired by the 
city for the ])urposel of removing offal from the city, is not a "supply" furnished, 
within the meaning of a law that all supplies to be furnished for the city involving 
an expenditure of more than $250 must be by contract founded on sealed bids. 

^ In an opinion of Attorney General Bates, dated May 23, 18G2 (10 Op., 261), it was 
held that a contract for surveying reservation lands under a treaty with the Indians 
was "personal services" within the meaning of section 10 of the act of March 2, 1861 
(12 Stats., 220), now embodied in sec. 3709, R. S. — the reason assigned being that the 
services required not only fidelity and integrity but a certain kind of skill and knowl- 
edge, and that the contracting officer should have discretion in selecting those who 
possess the required qualifications. In later opinions, however, "personal services," 
as used in sec. 3709, R. S., are held to include services to be rendered in person by the 
party contracted with, who thus becomes a servant of the Government. (15 Op. 
Atty. Gen., 235, 253; 19 id., 96.) In VI Comp. 314, the term "personal services," as 
used in this section, is defined as services to be "performed by a single person, or by 
firms, for the Government, under a contract made with the Government to render for 
it, his, or their individual services, of either skilled or unskilled labor, under the 
direction of the Government, thereby becoming the servant of the Government in the 
performance of such labor." (See also par. 528, A. R., of 1910.) 



■ 



CONTKACTS VII El. 309 

VII E 1. The act of June 12, 1906 (34 Stat. 258), provides that 
"Hereafter the purchase of supphes and the procurement of services 
for all branches of the Army service may be made in open market, in 
the manner common among business men, when the aggregate of the 
amount required does not exceed $500." Held, that there is nothing 
in the act to justify construing tlie words ''aggregate of the amount 
required" to require that the purchase should be limited to any par- 
ticular period of time, as a day, month, or year, or shall be limited to 
purchases made from a smgle firm, etc. The aggregate should 
include all supplies which are properly grouped together in a single 
transaction, and which would be included in a single advertisement 
for bids, if advertising were resorted to. Purchases arising from the 
same need of the same articles of subsistence stores should not be 
made more frequently than the necessities of the service require, so 
as to limit the aggregate in each case to $500, and supplies which are 
usually purchased together should not be divided simply for the pur- 
pose of avoiding advertising for the same. If the character of the 
suppUes is such that good administration would require their pur- 
chases in quantities sufficient to last a month, purchases should not 
be made weekly or daily for the purpose of bringing the amount 
witliin the limit authorized for open-market purchases. Subject to 
the above considerations, the matter is one depending upon the sound 
discretion of the purchasing officer. G. 28931, Sept. 2, 1911. 

VII E 2. The act of June 12, 1906 (34 Stat. 258), does not apply to 
river and harbor improvements and other civil work of a nc^nmilitary 
character that may be under the actual control of Army engineers, as 
such work is not ''Army service." C. 20326, Sept. 7, 1906. 

VII E 3. The Army War College is a branch of the "Army service" 
witliin the meaning of the act of June 12, 1906 (34 Stat. 258), which 
provides for the purchase and procurement of supplies and services 
"for all branches of the Army service" in open market, where the 
aggregate of the amount does not exceed $500, etc. C. 14^44i Oct. 
14, 1907. 

VII E 4. The act of June 12, 1900 (34 Stat. 258), provided that 
"hereafter the purchase of supplies and the procurement of ser\dces 
for all branches of the Army ser\ace may be made in open market, in 
the manner common among business men, when the aggregate of the 
amount required does not exceed five hundred dollars; but every such 
purchase exceeding one hundred dollars shall be promptlj^ reported to 
the Secretary of War for approval, under such regulations as he may 
prescribe." Held, that when the aggregate of the amount required 
does not exceed $500 it is not necessary to either advertise or to enter 
into a written contract as required by section 3744, R. S. C 23214, 
May 5, 1908. 

VII E 5. To purchase "in open market" is to purchase without 
advertising, and in the manner in which one person in civil life ordi- 
narily purchases from another in private business.^ 0. 313, Oct. 6, 
1894; 23214, ^«y 5, 1^08. 

VII F 1. The act of August 11, 1888 (25 Stat. 423), relatmg to river 
and harbor improvements provides that the Secretary of War shall 
apply the money appropriated "in carrying on the various works, by 
contract or otherwise, as may be most economical and advantageous 

1 See par. 559, A. R. 1910. 



310 CONTEACTS VII F 2. 

to the Government. Where said works are done hy contract such 
contract shall be made after sufficient public advertisement for pro- 
posals in such manner and form as the Secretary of War shall pre- 
scribe; and such contracts shall be made with the lowest responsible 
bidders, accompanied by such securities as the Secretary of War shall, 
require conditioned for the faithful prosecution and completion of the 
work according to such contract. " Held, that while tliis act does not, 
like section 3709, R. S., in words except cases of emergency from the 
necessity of advertising, it may be, ancf in practice has been, construed 
to permit such contracts to be made without advertising in cases of 
emergency. G. 6279, Nov. 21, 1898; 7315, Nov. 18, 1899, and Aug. 8, 
1910, So, also, where the Government owned a number of iron rails, 
Jield, that under the provision of the above act of August 11, 1888, 
authorizing the work to be carried on "hy contract or otherwise'^ the 
Government could properly make a supplemental contract with a 
contractor without advertisement for renting the rails to the contrac- 
tor for use in connection with the river improvement work {0. 10819, 
July 13, 1901); and under the same provision to the above act, held, 
that the government by a supplemental contract without advertise- 
ment could termmate a contract for river improvement, the contractor 
releasing all claims against the Government, the Government paying 
him for the work already performed, purchasing all the material on 
hand and hiring the contractor's entire plant until the completion of 
the work by the Government. 0. 2275, May 12, 1896; 8087, Apr. 27, 
1900. So, also, where a contractor for a river improvement aban- 
doned the contract after performing part of the work, held that, under 
the same provision of the above act, the Government could purchase 
the plant of a subcontractor and complete the work by hiring labor 
and piu'chasing material. C. 27790, Feb. 6, 1911. So, also, where a 
dredgm^ company offered to do dredging at a certain price per cubic 
yard, which price was a very low one for the reason that it had an 
arrangement with a railroad company that was interested in the work 
to receive additional compensation from that company. Held, under 
the same provision of the above act, that an agreement without adver- 
tising could be made with the dredguig company whereby the dredg- 
ing company should do the work at the very low figure named under 
the supervision of tlie engineer officer. C. 7980, Apr. 11, 1900. So, 
also, under the same provision of the above act, where a contract called 
for the removal of rock to a width of 40 feet and it was desired to have 
the same contractor remove rock for an additional 60 feet in width, 
held, that if the work was to be done by hiring the contractor to 
remove rock at a cei'tain price per cubic yard and not by agreeing 
with Mm to remove a given quantity of rock, tlie work might be con- 
sidered as being done otherwise than by contract, and no advertise- 
ment would be necessary. G. 8658, Aug. 6, 1900. 

VII F 2. Where the 'act of March 3, 1905 (33 Stat., 860), which 
authorized improvements at West Pomt provided that " after general 
plans had been prepared and approved by the Secretaiy of War, he 
might, within the limit of cost iixed, proceed with their execution in 
such order as the detailed plans might be approved by limi and in 
such manner 'hy contract or otherwise^ as he might see fit." Held, 
that the biuldings might be constructed on the percentage plan and 
without advertisement. G. 209^7, Jan. 18, 1907, and Feb. 3, 1911. 



CONTRACTS VII G 1. 311 

VII G 1 . Where Congress makes an appropriation applicable to the 
alteration of a particular monument upon the report of a committee 
which referred to a particular plan for the alteration as meeting with 
the approval of all parties interested, lield, that such action would 
imply a legislative adoption of the plan so that it could not be mate- 
rially departed from, and if a private company had the exclusive right 
to use those plans the case would be one where competition would be 
useless and would constitute an exception to the rule laid down in 
section 3709 R. S., that advertismg should be had. C. 19834, -^«y ^, 
J 910. 

VII G 2. Wliere the Army War College wished to obtain certain 
maps, many of which were rare and difficult to obtain, so that it 
would be impossible for bidders to determine w4iat the maps would 
cost them, held, that competition would be useless, and under the 
provisions of the act of March 2, 1903 (32 Stat., 936), which requires 
advertising except "where it is impracticable to secure competition," 
advertising could be dispensed with. C. 16018, Mar. 12, 1904- 

VII G 3. Where the Government desired to purchase electric power 
under circumstances where there was no real competition, lield, that 
advertising would not be necessarv, as it would be useless. C. 18169, 
June 16, 1905. 

Where it was desired to install wdreless telegraph stations in 
Alaska, held, that as each bidder is m possession of certam informa- 
tion and methods of transmittmg messages which are but partially 
developed and are not available to any other bidder, the case is not 
one where there can be true competition. Therefore, section 3709 
R. S., does not require advertising m such a case.^ C. 12705, May 31, 
1902. 

The Government licensed certam telegraph mstrnments obtamed 
under a contract which provided that the Gov;mmeiit should not 
dispose of the instruments m any way excep'j by total destruction 
or by sale to the licensor upon terms to be mutually agreed upon. 
Held, that in selling the instruments to the licensors it would not be 
necessary to advertise for bids, as competition would be useless. 
C. 20523, Oct. 17,1906. 

Where it was desired to enter mto a contract in the nature of a 
lease to take sand and gravel from certain land, held, that competi- 
tion would be useless and advertisement was not necessary. C. 17642, 
Mar. 8, 1905. 

Where bids for supplying sand and gravel had been invited m 
Januaiy, 1903, and the prices ranged from $1 to $1.50 per cubic 
yard, held, that a contract could be made in July, 1903, for sand 
and gravel at 40 cents per cubic yard without advertismg, as compe- 
tition would be useless. C. 14919, July 9, 1903. 

VII H. Wliere, pursuant to section 3709, R. S., advertisement has 
been once duly made, the law has been complied with. If this adver- 
tisement is without result, it is not necessary (though it is permis- 
sible) to advertise again, or to go on advertismg till an acceptable 

1 See I Comp. Dec, 229; II id., 632; V id., 554; 17 Op. Atty. Gen., 84, that sec. 
3709 R. S., does not require advertising to precede contracts for the purchase of 
patented and copyrighted articles. In an unpublished opinion of the Comptroller of 
June 30, 1908, found on C. 25747, J. A. G. O., the determination by the Secretary of 
War that the purchase of a particular vehicle was needed, and his determination that 
the circumstances rendered competition impracticable were accepted as sufficient to 
excuse the absence of advertisement. See also U, S. v. Speed, 8 Wall., 83, 



312 CONTRACTS VII I. 

proposal be received, but open-market purchase without advertising 
may be resorted to.^ 62, P. 1^91^, Bee. U, 1893; C. 8198, May 4, 
1900; 9036, Sept 21, 1900; 16342, May 18, 1904; 16493, June 18, 
1904; and 24059, Oct. 27, 1908. In the latter case, however, the 
purchase must be limited to the article or articles previously adver- 
tised for. C. 313, Oct. 5, 1894; S198, May 4, 1900. So, where bids 
were invited for certam road work in the Gettysburg National Park, 
coupled with the statement that $15,000 had been set aside for the 
work, and no bid was received within that figure, and it was then 
decided to let a contract without advertisement for a part only of 
the road work formerly designated. Held, that reaclvertisement 
was necessary. C. 20298, Aug. 28, 1906. 

VII I. It is the established practice in the fiscal administration 
of the several executive departments that one department or bureau 
may obtam from another, at cost price, such articles as are needed 
in its admmistration, the theory bemg that the requirements of law, 
in respect to advertising and contracting, have been complied with 
in the origmal purchase of the articles so transferred at cost price. 
Therefore, held, that the commissioners of the National Soldiers' 
Home may lawfully purchase clothing from the quartermaster's 
department, if such clothing is considered more suitable than that 
obtained by contracts between the commissioners and manufacturers. 
C. 26911, June 20, 1910. Where the Government of the Philippme 
Islands, after an opportunity for competition had been afi"orded, 
entered mto a contract with the owners of certain merchant vessels 
for the transportation of passengers and freight between certain parts 
of the PhUippme Islands at reduced rates, and the United States had 
an opportunity to obtain the same rates, Tield, that the United 
States could lawfully take advantage of the reduced rates without a 
fresh advertisement. C. 22672, Jan. 24, 1908. Wliere the United 
States desired to have insane Filipuio soldiers cared for in the San 
Lazaro Hospital, Manila, which institution was under the control of 
the Government of the Philippine Islands, lield, that the agreement 
for this purpose should be by an mformal agreement without adver- 
tising not by a formal contract, under section 3744, R. S.^ C. 23229, 
Aug. 4, 1909. 

Applying the same principle to the operations of a post exchange 
(which is an instrumentality of the United States), a post hospital 
could properly contract without advertisement to have the hospital 
laundry work done at the post-exchange iaundiy, and on the other 
hand, as the post exchange is not a legal entity, and is exempt from 
burdens borne by private commercial institutions, such as rent, 
taxes, license fee, etc., it would be improper for it to compete with 
other bidders for public supplies or services.^ C. 18156, Oct. 31, 1905. 

VII J 1 . If a contract is still in existence as an executory contract, 
even though one party may have completely performed his part of the 
contract, and it is not against the public interest to close it out by a 
compromise agreement between the parties, compensating either 

^ Par. 559, A. R., 1910, provides that "an open-market purchase of suppljies or 
engagement of services is one made without advertising, and is authorized in the 
following cases: * * * 

"3. When proposals have been invited and none have been received. 

"4. When proposals are above the market price or otherwise unreasonable." 

^XVIComp. Dec, 163. 

3 See Cir. 57, W. D., Nov. 7, 1905. 



J 



CONTRACTS VII J 2. 313 

party for damages suffered instead of carrying the contract to com- 

Eletion according to the original intention, the Secretary of War may 
y a supplemental contract make such a compromise agreement ; but, 
if on the contrary, the contract has already actually been canceled and 
annulled,^ and therefore the contract is out of existence as an execu- 
tory contract, the Secretaiy of War can not settle with the contractor 
for any damages he may have suffered by reason of anything that has 
been done. Before the Secretary can close out a contract by a com- 
promise agreement there must be a live contract to close out. There 
must be an executory contract in existence for the contractor to 
perform and fulfill according to its terms. But if a contract has been 
actually canceled and annulled there is nothing that the contractor 
would have the right to proceed with and therefore nothing that the 
Secretaiy could close out by a compromise agreement. If a contract 
is already canceled and annulled, it is already closed and the rights 
of all parties are fixed.^ C. 3969, Oct. 11, 1898; 10502, May 16, 1902. 
VII J 2. Where a contract provides that the contractor may be 
allowed such additional time as the constructing officer may deter- 
mine to be due to certain causes, lield that a supplemental contract is 
not necessary, but that it is sufficient to notify the contractor in 
writing of the determination made. C. 17597, Fel. 27, 1905. _ 

VII J 3. Even where a contract stipulates for a modification of 
its terms, by consent of parties, to be set forth in a supplemental con- 
tract, such supplemental contract must be confined to modification 
merely of the specific undertaking which is the subject of the original 
contract. A modification which introduces any new matter not 
originally contracted for — as different and distinct work to be done 
or sei*vice to be performed — is a new and independent contract made 
without advertising for bids, and not legitimate. So, Juid, that a 
contract for dredging in North River and at North River Bar, N. C, 
could not legally be modified by a supplemental contract substituting 
dredging in Carrituck Sound, a quite different locality. P. 61^., SI^J^, 
Apr. 12, 1894-. An advertisement for a certain quantity of quarter- 
master stores was duly made. The contract contained a provision 
that the contract ''may be changed, altered, modified, or aorogated 
in whole or in part and the quantity of the article herein contracted 
for may be increased at any time during the present fiscal year." 

1 But the fact that one of the parties to the contract has failed or refused to carry out 
the contract does not constitute a cancellation, rescission, or annulment. The contract 
is still in force and the rights and claims of both parties may be settled by a compro- 
mise agreement between them if not against the interest of the United States. In 
22 Op. Atty. Gen., 437, it was said: "It is a mistake to suppose, except where it is 
expressly so provided, that one party to a contract can, without the consent or default 
of the other, cancel, rescind, or put an end to the contract or its obligations. The law 
neither provides nor recognizes any such easy road to repudiation. A party may 
abandon or fail or refuse to perform his contract, but its obligations still continue, 
although at law there may be no means for their enforcement. This is shown by the 
fact that it is the usual practice of courts of equity to enforce the specific performance 
of contracts against parties after their breach of or refusal to perform them. This, of 
course, could not be done if the obligations of the contract did not continue after 
breach as before." 

^ The rule stated in the paragraph must be understood as subject to the limitation 
that no executive officer has authority to settle by a supplemental contract such unliq- 
uidated damages in favor of the United States as may arise from a breach of the 
contract (as distinguished from unliquidated damages arising from the perforniance of 
the contract), but in such cases resort must be had to the courts for their liquidation. 
Cramp & Sons v. U. S., 216 U. S., 503, XVII Comp. Dec, 806, 810. 



314 CONTRACTS VII J 3. 

Held, that this provision did not authorize the parties to the contract, 
even by mutual agreement, to permit the contractor to deliver a quan- 
tity not called for in the advertisement and contract, and that addi- 
tional stores could be obtained only after advertisement as required 
by law.i R. 37, 478, Apr. 18, 1876; 39, 653, Sept. 3, 1878; 4.I, 182, 
Apr. 4, 1878. 

1 In the case of a contract in the Post Office Department, containing a stipulation 
for extension, etc., by the authority of which the operation of the contract had been 
extended beyond the period expressly limited therein, although by a statute governing 
the case it was requh-ed that all such contracts should be made upon advertisement, 
proposals, etc., it was held by Attorney General Hoar (13 Op., 174), as follows: "I am 
of the opinion that the provisions of that statute apply to the contract in question, and 
that, although the contract contained a provision for its extension and modification 
at the pleasure of the contracting parties, such a provision was not authorized by law. 
If a contract, which the law only allows to be made in pursuance of an advertisement, 
could afterwards be renewed and extended at the pleasure of the Postmaster General 
without any advertisement, it would be in the power of that officer and his successors 
in office, unless restrained by some subsequent act of the legislature, to make for all 
future time such contracts as he mi'ght think expedient, without reference to the 
conditions contained in the original advertisement for proposals, or to the terms upon 
which the contract wasoffered to public competition." The above opinion, however, 
is not inconsistent with the right of the United States to modify an existing contract 
with the consent of the contractor, or even to entirely abandon an existing contract, 
either with or without the consent of the contractor, ijsuch a course is deemed not to he 
against the interest of the Government. This right exists whether the contract does or 
does not contain a provision for its modification, and is usually and regularly accom- 
plished by means of a brief written supplemental contract briefly reciting the facts 
which show the contract is not against the interest of the United States, signed as 
required by sec. 3744, R. S., and approved by the officer charged with the approval of 
the original contract. The right may, however, be exercised by the officer in charge 
of work verbally ordermg changes commonly known as "extras." If the contractor 
performs the "extra" work or supplies "extra" material he should be paid the reason- 
able value of the same unless the parties agreed upon a price before performance. 

The following decided cases illustrate the broad scope of supplemental contracts: In 
U. S. V. Corliss, 91 U. S., 321, the Secretary of the Navy had made contracts for engines 
and machinery to be placed on one of our vessels of war, but before the work was com- 
pleted, the war being closed, the Secretary suspended the further performance of the 
contracts. The contractor proposed that in settlement of the whole matter he would 
retain the uncompleted engines and machinery and accept $150,000 or he would 
deliver the work in its uncompleted state and accept |259,068 in full settlement. The 
Secretary accepted the latter proposition, and there being no appropriation therefor, 
gave the contractor a certificate for this sum, and the Supreme Court upheld the settle- 
ment and expressly decided that it was within his power. In that case the court said : 
* * * "As, in making the original contracts, he (the Secretary of the Navy) must 
agree upon the compensation to be made for their entire performance, it would seem 
that, when those contracts are suspended by him, he must be equally authorized to 
agree upon the compensation for then* partial performance. Contracts for the arrna- 
ment and equipment of vessels of war may, and generally do, requhe numerous modifi- 
cations in the progress of the work, where that work requires years for its completion. 
With the improvements constantly made in shipbuilding and steam machinery and in 
arms, some parts originally contracted for may have to be abandoned and other parts sub- 
stituted ; and it would be of serious detrimen t to the public service if the power of the head 
of the Navy Department did not extend to providing for all such possible contingencies 
by modification or suspension of the contracts, and settlement with the contractors. 
When a settlement in such a case is made upon a full knowledge of all the facts, witliout 
concealment, misrepresentation, or fraud, it must be equally binding upon the Gov- 
ernment as upon the contractor; at least, such a settlement can not be disregarded by 
the Government without restoring to the contractor the property surrendered as a con- 
dition of its execution." The power to settle with a contractor by means of a supple- 
mental contract has been limited by a recent opinion of the United States Supreme 
Court to the extent of holding that a supplementa,l contract can not settle unliquidated 
claims against the Government arising from a breach of the contract. See Cramp & Sons 
i^. U. S., 216 U. S., 503; XVII Comp. Dec, 806, 810. 

Where a dredging contract provided that the contractors should provide their own 
dumping grounds at their own expense, and it was proposed to modify the contract 



CONTRACTS VII J 3. 315 

A contract provided for the construction of the Barnes Landing 
Levee and the Warfield Point Levee, Mississippi, and it was pro- 
posed to enter into a supplemental contract for the construction 
of 40,000 cubic yards at Ingomar, Miss., instead of at Barnes Landing. 
Held, a supplemental contract for that purpose would be illegal, as 
Ingomar was a different locality and was not mentioned in the adver- 
tisement for the work, and even the provision in the advertisement 
authorizing the engineer in charge to ''designate the exact locality" 

by having the United States authorize proceedings in its name, to condemn land 
for a dumping ground, and it was questioned whether the proposed modification 
could be made under the original advertisement, the Attorney General, in 21 Op. 
Atty. Gen., 78, said: "The advertisement under which the original contract was 
made can no longer be regarded as of any material importance, since the work 
contracted for has been partially executed, while unforeseen obstacles have arisen 
which threaten to greatly hinder and probably prevent its complete execution. 
Under duch circumstances, what the contractors propose is a modification of the con- 
tract, which, while it relieves them of their difficulty, is in reality more favorable 
to ine Government than the original contract. Under its terms the contractors were 
to furnish the necessary dumping grounds. But under the terms as modified, not only 
will the contractors practically furnish the dumping grounds by paying the United 
States all they cost, but when the contract has been fulfilled the United States will 
own the dumping grounds, and will be pecuniarily benefited to the extent of their 
value. Without approving the precise terms of the proposed supplemental contract — 
which I think may be advantageously changed in some particulars — the advertisement 
pirrsuant to which the contractors bid for and were awarded the original contract does 
not, in my judgment, offer any legal difficulty to the making of substantially such a 
supplemental contract as is suggested." 

In 21 Op. Atty. Gen., 207, it was held that a clause in contracts of the War Depart- 
ment providing for futiu-e modifications of the contract was reasonable and proper, . 
and that a modification of the contract made under that provision, which does not 
prejudice the interests of the GoA'^ernment or A-iolate any statutory provision, is not 
such a new contract as must be preceded by advertisement, citing 18 Op. Atty. Gen., 
101, and28Ct. Cls., 332. 

In VIII Comp. Dec. , 549, where a contract provided for the payment of the entire price 
stipulated therein upon the completion and delivery of a lighthouse, held the officers 
of the Government were not authorized to modify the contract by providing for a 
partial payment of the amount before completion if such modification would be 
prejudicial to the interests of the Government. 

In IX Comp. Dec, 43, a contractor having failed to complete the work provided for in 
the contract, held, a supplemental contract might be entered into with him and his 
sureties by which it might be proAaded that the work should be completed by the 
siu-eties and payment made to them therefor, and also from the amounts retained 
fi-om payments made to the original contractor for any excessive cost thereof less the 
amount of any damages suffered by the Government. 

In XV Comp. Dec, 439, it was held that where it becomes necessary for the exclusive 
benefit of the Government to abandon work under a contract and otherwise depart 
therefrom, resulting in loss and damage to the contractor, and a supplemental con- 
tract, providing for such damages, is entered into between the parties and approved 
by the Secretary of War, in which the damages to the contractor are agreed upon and 
fixed in a lump sum as a fair and just compensation for said damages and in full liqui- 
dation thereof, payment of the sum so agreed upon is authorized, and held, further, 
that the contractor's profit on work under a contract abandoned by the Government 
for its exclusive benefit and his loss resulting fi-om additional expenses incun-ed by 
reason of such abandonment are proper elements of damage. On the latter point 
see also Venable Construction Co. v. U. S., 114 Fed. Rep., 763. 

In 22 Op. Atty. Gen., 437, where a contract had been made for the transportation 
of supplies for the relief of destitute peo])le in the Yukon River region and the expe- 
dition was abandoned by the Government, held that the Secretary of War had the 
right to abandon the contract and decline to perform it if he deemed that the (lublic 
interests so required, and that he had the power to settle and pay the claims of the 
contractors growing out of the abandonment, and this regardless of whether such 
claims were liquidated or unliquidated. 

Under the rule laid down in 91 U. S., 322, the time for completion of a contract 
may be extended to a futui-e specified date provided the Government interests will 
not be thereby prejudiced. II Comp. Dec, 242, 635; 4 id., 38; 8 id., 104; 14 id., 237. 



316 CONTRACTS VII J 3. 

at which the work should be prosecuted would not authorize him to 
designate a locality other than at the place named in the advertise- 
ment. C. 1(75', Oct. 18, 1894- So, also, where a contract had been 
made for dredging ''hard pan with bowlders imbedded therein" and 
"soft mud " from the channel at the mouth of Aswegatchie River and 
Ogdenburg Harbor, and it was proposed to do additional dredging of 
"fine hard sand" from the "outer bar at the upper entrance to the 
harbor." Held, that the localities and material being different from 
those set out in the advertisement a supplemental contract to cover 
the additional work would be illegal, u. 1454, June 18, 1895. So, 
also, where a contract had been made for removing rocks and bowlders 
from a river within the width of 40 feet, and the work having been 
completed, it was proposed to enter into a supplemental contract 
for removing the rock along the northerly side for an additional 
width of 60 feet. Held, that the additional work not being a modifi- 
cation of the original contract, nor being made necessary by a change 
in the work covered by the original contract, and the only connection 
between the additional work and the original work being that it is to 
be in the same locality alongside of it, it could not legally be covered 
by a supplemental contract, but should be readvertised for. C. 8658, 
July 26, 1900. So, where in the course of the execution of a contract 
for the dredging of a river, there was developed certain work requiring 
to be done which was not embraced in the work contracted for, but 
was quite new and distinct, viz, the removal of a bar formed in the 
river after the work under the contract had commenced — lield, that 
the same could not be included by consent in the existing contract, 
or covered by a supplemental contract entered into, without adver- 
tising, with the same contractor, though such course might be more 
advantageous to the United States, but that the law must be com- 
plied witii by a new advertisement for proposals followed by a sepa- 
rate formal contract. P. 47, 257, May 20, 1891. A contract duly 
made for the removing of a wreck in Charleston Harbor, rendered 
difficult of completion by stormy weather, the action of the tides, etc., 
can not legally be allowed to be superseded by a supplemental con- 
tract for partially breaking up the wreck, to be entered into with 
the same party without advertising and to provide for paying the 
party for the work already done in partially removing the wreck and 
for relieving the contractor from further liabihty under his contract.^ 
P. 63, 256, Jan. 16, 1894. 

Where the time within which quartermaster's stores were to be 
furnished to and received by the United States was limited to a stated 
period, Jield, that the Secretary of War would not be authorized to 
renew or extend the operation of the contract beyond that period, 
so as to admit the delivery of additional stores under the same, but 
that tor such additional quantity it would be necessary to contract 
anew in the regular legal mode, upon new advertisement, proposals, 
and award. R. 36, 463, May 14, 1875. Wliere bids were invited 
for 30,000 yards of Kersey, subject to an increase not to exceed 50 
per cent, and the prices named by the lowest bidder and the next 

' In Schneider v. U. S. 19 Ct. Cls. 551, where a contract had been made to furnish 
sandstone for a public building for $58,000, and it was sought to modify this contract 
by substituting marble for $143,000, without advertisement, the material being the 
sole subject matter of both the original and the modified contract, held the latter con- 
tract was not a modification of the former, and a new advertisement should be had. 



CONTRACTS VII J 4, 317 

lowest bidder were nearly equal, held, that contracts could not be 
made with each of the contractors for the entire amount advertised 
for, subject to a possible 50 per cent increase. A fresh advertisement 
would have to be made to cover the amount over that stated in the 
original advertisement. C. 25979, Dec. 23, 1909. 

VII J 4. The foUo\ving cases illustrate the nature of the action or set- 
tlement that may properly be the subject of a supplemental contract, 
it appearing in each case that the supplemental contract would not he 
against the interest of the United States.^ 

To provide for an additional expenditure to cover the cost of addi- 
tional masonry, rendered necessary by the site of a quartermaster and 
commissary storehouse, but not shown on the plans or provided for in 
the original contract for the building of the house. C.270o, Oct. 27, 1896. 
For excavation found necessary in addition to the excavating con- 
tracted for in the construction of a cofferdam, and piling foundation 
for a lock. C. 2927, Feb. 10, 1897. To cover expense to contractor 
of maintenance, etc., during suspension of river and harbor work 
which was directed by the engineer officer in charge on account of high 
water, and on account of damage to the levee which the driving of 
piles, etc., by the contractor might cause. C. 2927, June 8, 1897. 
To substitute in the wings of a lock 800 round piles 60 feet in length 
for that number 50 feet in length. C. 2927, July 2, 1897. To provide 
for necessarv" rock excavation," as well as "common excavation," 
the original contract providing for "common excavation" only. 
C. 52J^Jf., Nov. S, 1898. To substitute brick piers and curtain walls 
for pile foundation in connection with the erection of certain build- 
ings. C. 11041, Aug. 13, 1901. To provide for depositing dredged 
material on private ground instead of towing same to public dumping 
ground. C. 3423, Aug. 10, 1897. To provide for working two or 
three shifts of men, each for eight hours, instead of one shift only for 
eight hours, as provided in the original contract, C. 9085, Oct. 11, 
1900. To provide for the vesting in the United States of the title to 
property being manufactured for the United States and being paid for 
by partial payments, the original contract failing to specify where the 
title vested after partial payments began. C. 9410, Dec. I4, 1900. 
To provide for the purchase at a reduced price of mineral oil of a lower 
flasli test than required by the original contract. C. 26846, Oct. 7, 
1910; 28353, May 17, 1911. The United States entered into a con- 
tract for the filling of a certain piece of ground to a certain grade. 
Unexpectedly, the ground subsided, making it necessary to increase 
the fill in order to reach the required grade. Held, that the contract 
was made on the assumption of the continued and practically un- 
changed existence of the foundation for the fill; that is, that there 
would be a foundation for the proposed fill which would not mate- 
rially subside, and that a supplemental contract could properly be 
made to cover the increase 01 fill on account of the subsidence. C. 
24531, Mar. 5, 1909. A contract was made for the construction at 
Fort Hancock, N. J., of 32 buildings and one double bake oven at a 
stated price for each building, etc., the prices aggregating a stated 
amount. The contract provided that the payments should be made 
at such times and in such amounts as the officer in charge of the work 
should elect, based upon estimates to be made by him of completed 

1 See Satterlee v. U. S., 30 Ct. Cls., 31. 



318 CONTRACTS VII J 4. 

work, and that 20 per centum of each payment should be retained 
until the final completion and acceptance by the Government of all 
the work under contract. After several of the buildings had been com- 
pleted the Government occupied and continued to use them. Held, 
that the price of the several buildings could not be paid in full until all 
the buildings were completed, but that if it were desirable to make pay- 
ment in full for each building when completed a supplementary con- 
tract could be made providing for such payment. V. 4825, Aug. 2S, 
1898. A contract was made for the earthwork construction of " mile 
24," Illinois and Mississippi Canal. At the time the specifications of 
the contract were prepared it was assumed that the work could be 
done by building part of the embankment with the clay and gravel 
from the high grounds at the east and west ends of the mile in ques- 
tion, this method appearing to be perfectly feasible and practicable 
from the test borings which had been made. The latter were, how- 
ever, made in very dry weather. During the rainy season which fol- 
lowed further examination developed that the mile for two-thirds 
of its extent was a peat bog of great depth. The construction out- 
lined in the specification could not be successfully executed except by 
excavating this peat from the greater part of the mile and then mak- 
ing the slopes and bottom of good water-tight clay and gravel which 
could not be obtained on the mile. The changed conditions ren- 
dered it desirable that the Government should not enforce the con- 
struction outlined in the specifications, and that the embankments 
be made of other material which must be transported from a distance. 
The contractors asked that the contract be annulled without preju- 
dice to tliem. Held, that there was no legal objection to a supple- 
mental contract annuUing the original contract as indicated. C 
5195, Oct. 2Ji, 1898. AVliere the progress of a contractor in the per- 
formance of important work, contracted to be done by him in con- 
nection with the improvement of the Savannah River, was quite 
unsatisfactory, and the alternative under the terms of the contract 
appeared to be either the absolute annulment of the contract by the 
United States, or the supplementing of the operations of the con- 
tractor by work cari-ied on by the Engmeer Department of the Army, 
the contractor paying the extra expense if any — lield that a supple- 
mentary contract made with him to the effect that the engineer 
officer in charge of the improvement should render Ijim aid in the per- 
formance of the work, chargmg to him the actual cost of such aid 
and deducting it from the payment to be made him under the con- 
tract, was without legal objection. P. 62, 451, Bee. 2, 1893. Wliere 
a contract was made to manufacture campaign badges according to 
a design submitted by the Government, and owuig to the failure of 
the Government to provide suitable designs from which dies might 
be made the contractor was unable to make the badges. Held, a 
supplemental contract might be made annulling the contract and re- 
imbursing the contractor. C. 19861, June 7, 1906. Where a con- 
tract had been made for the construction of a cabinet with files and 
drawers, and it was subsequently desired to add a sliding support for 
each file and drawer, held that the original contract could be modified 
to this effect l)y a supplemental contract. C. 13401, Oct. 4, 1902. A 
contractor may by a supplemental contract be granted compensation 
for additional time and attention required by the work because of the 
delay in its execution due to a failure or error on the part of the Gov- 
ernment. C. 23546, Nov. 3, 1910; 27508, Nov. 21, 1910. Where 



CONTRACTS VII J 4, 319 

a contractor became unable to complete his contract and the surety 
was willing to complete it, lield there was no legal objection to a tri- 
partite contract between the United States, the original contractor, 
and the surety company that the surety should complete the work 
within the time specified in the original contract and should use the 
plant of the contractor therefor; that the price to be paid should be 
that specified in the origmal contract, so that the amount already 
paid under the original contract with payments to be made should 
not exceed, for the entire work, the amount stipulated in the origmal 
contract; that all payments due or to become due under the terms of 
the original contract should be paid to the surety company, and that 
the contractor should release the United States from all claims on 
account of the original contract or work performed thereunder, and 
should look only to the surety company therefor. C. 11328, Oct. 3, 
1901; 28731, July 25, 1911. Where a contract for furnisliing frozen 
beef for the Army in the Philippines provided that the beef ' ' will be 
admitted free of customs duties and it appeared that at the time the 
contract was made the law in force provided for the free admission of 
all ^oods and merchandise for the use of the Army, but that before the 
period covered by the contract had expired this law was repealed. 
Held, that the repeal of the law by Congress did not constitute a vio- 
lation of the contract on the part of the United States;^ but that the 
provision in the contract for free admission of beef was an undertaking 
m the nature of a warranty by the United States as a contractor that 
the beef would be admitted free, or if duties were imposed that the 
United States would pay them, and the United States would be 
legally liable to the contractor for duties so paid, and it wouJd there- 
fore be legal to enter into a supplemental contract to pay an addi- 
tional price to cover the duties. C. 13893, Aug. 18 and Dec. 29, 1909. 
Where a contractor was delayed in the comi)letion of his contract by 
reason of the fault of the Government and the additional work 
required would be syfficiently secured by a smaller bond, Jield there 
was no legal objection to a supplemental contract which should pro- 
vide for an extension of the time of compbting the contract, for a 
reduced bond, and for reimbursing the contractor for additional ex- 
pense due to the delay, including the premium required on a new bond 
with a surety company. C. 28472, June 6, 1911. 

A contractor was authorized by the terms of the contract to take 
stone from a quarry owned by the United States, it being provided 
in the contract that "operations must be so conducted by tlie con- 
tractor as to leave the quarry in good shape for continuing the work 
at some future time," and that the contractor "must leave the quarry 
in good condition, with nearly vertical faces, at the termination of 
the contract." The operations were so conducted as to cause a 
landslide which carried such a large amount of rock and debris into 
the quarry that the contractors were compelled to abandon it and 
obtain stone elswehere. The contract was completed in all respects 
except as to leaving the quarry clear. Held, thsit if it was in the 
interest of the United States the clearing of the quariy might be 
omitted upon entering into a supplemental contract to authorize 
the deduction from the money due of the value of the quarry. C. 
10049, Mar. 26, 1901. 

1 See Deming v. U. S., 1 Ct. Cls., 190; Brown v. U. S., 1 id., 384; Wilson v. U. S., 11 
id., 513; 28 Op. At. Gen., 121. 



320 CONTRACTS VII J 5. 

The river and harbor act of August 11, 1888 (25 Stat., 423), pro- 
vided ''that it shall be the duty of the Secretary of War to apply 
the money herein and hereafter appropriated for improvement of 
rivers and harbors, other than surveys, estimates, and gaugings, in 
carrying on the various works by contract or otherwise as may be 
most economical and advantageous to the Government." Held, that 
according to the practice under the above provision the funds appro- 

griated might be applied to purchase without advertising supplies to 
e used in carrying on river and harbor works, and therefore a sup- 
plemental contract might be entered into for the termination of a 
river improvement contract and the purchase of the plant of the 
contractor. C. 2275, May 12, 1896. 

Wliere a contract for installing a steam-heating plant provided that 
the plant should be subjected to a practical test during the coming 
winter, but the winter had passed before the plant had been installed, 
lield, that the test having become impossible of performance there was 
no legal objection to paying the contractor the retained percentages 
upon his giving the United States a bond that the plant would come 
up to a certain test during the next winter. C. 13001, July 22, 1902. 

VII J 5. Wliere, in addition to the work required under a con- 
tract, certain extra work is required by the officer in charge which 
is practicable of performance only by the contractor, such extra 
work may be performed by the contractor without advertising,^ and 
in the absence of an agreement as to the price the reasonable value 
of the services and material may be paid the contractor.^ C. 5901, 
Mar. 4, 1899; 10920, Aug. 3, 1901. 

VII J 6. A contract for the construction of a building provided 
that the excavations were to be of such depth as will provide absolute 
security against insecure foundations, and that whatever excavation 
was necessary to secure such depth should be without extra charge. 
The contractor in carrying out instructions to excavate deeper than he 
and an expert beheved necessary found quiclcsand. Thereupon the 
officer in charge authorized a change in the character of the founda- 
tion to meet the unexpected condition of the soil, and the building 
was then completed, held, that the extra cost of the new kind of 
foundation may well be considered as an "extra" within the meaning 
of the contract, and the contractor may be paid for it. C. 9874, Feb. 
25, 1901. Where the footings and foundation walls of a certain 
building had to be carried to a greater depth than shown on the 
plans, lield that the contract for construction of the building proceeded 
on the assumption that a stable foundation was to be had mthin 
reasonable limits, and that as the contractor had to excavate to 
an unreasonable depth to reach a foundation on ledge rock he w^as 
entitled to additional compensation for the extra work on the basis 
of a quantum meruit. C. 19437, Apr. 2, 1906. 

Where the Government agreed to furnish crushed stone which the 
contractor was to haul and use for road building, and Govermnent 

* See II Comp. Dec, 373. Where a contract is authorized without restriction as to 
cost, the Government would be liable for "extra" work and materials accepted by it, 
and also, where a contract is made under a general appropriation, the contractor is not 
bound to know the condition of the appropriation and the Government will be liable 
for "extras," but where a contract on its face assumes to provide for all the work 
authorized by an appropriation the contractor is bound to Jknow the amount of the 
appropriation, and can not exceed it by doing "extra" work. 2 Ct. Cls., 151; 16 
id., 528; 18 id., 146, 496; 21 id., 188; 31 id., 126; 33 id., 1. 

2 Grant v. U. S., 5 Ct. Cls.. 71; Ford v. U. S., 17; id., 60; Wilson v. U. S., 23 id., 77. 



CONTEACTS VII J 7. 321 

failed to provide the stone in sufficient quantities, making it necessary 
for the contractor to haul stone from a more distant point, held, that 
the contractor was entitled to consider the increased expense arising 
from the hauling from a more distant place as an extra for which he 
should be allowed a reasonable compensation in a supplemental 
contract. C. 23546, Nov. 3, 1910. 

Through a mutual error a contract was so worded as to misstate the 
real agreement and intentions of the parties and required the con- 
tractor to perform certain work not intended to be covered, and the 
contractor offered to do the said work as an extra. He was required 
to do the work by the quartermaster on the assumption that the 
contract was properly worded. Held, that as the contractor was 
not estopped by his conduct from claiming that the contract mis- 
stated the real intentions of the parties and as the facts clearly 
estabHshed his claim, he was entitled to be compensated for the extra 
work performed. C. 22238, Oct. 2J^, 1907. 

VII J 7. Where a contract provided that any modification of the 
contract should be approved before the work covered by the modifi- 
cation was performed, but in violation of this provision the extra 
work was performed without such approval, the performance of the 
work being with the consent of the officer in charoje, lield that the 
provision in question was waived and a supplemental contract sliould 
DC approved. 1 C. 23501, June 27, 1908. . So, where a contract pro- 

> In Barlow v. U. S., 35 Ct. Cls., 514, the syllabus is as follows: 

"Additional work or better material than that required by the contract, ordered by 
a subordinate without authority to do so, must be regarded as voluntary service and 
no contract for it can be implied . 

"Where alterations or additions are ordered by an officer or agent of the Government 
authorized to contract, a contract will be implied to the extent of the benefit which 
the Government has received, notwithstanding a provision in the original contract 
that such orders must be in writing. 

' ' Where a contract provides that alterations or additions must be ordered in writing, 
and the cost thereof agreed upon before the work is done, the principals may waive 
the requii'ement. In Government contracts the officer who has authority to contraci" 
or order changes must be regarded as a principal." 

On page 548, idem, the court said: "Where a contract expressly provides that alter- 
ations or additions must be ordered in writing and the cost be agreed upon before the 
work be done, the princi])als to the contract in ordinary cases between individuals 
may waive the requirement; so in the case of Government contracts, the officer who 
has authority to order or agree in writing must be considered pro hac vice as the prin- 
cipal, and if he orders a change orally, and the contractor acts on the order and per- 
forms the extra work, the parties will be deemed to have mutually waived the require- 
ment. (Ford's Case, 17 Ct. Cls. R., 75). 

" In a few words, it may be said that the statutes and these contractual provisions must 
be construed for the protection of the Government and not for the embarrassment of the 
contractors; and that they can not be used by public officers to cloak breaches of con- 
tract or justify improper interference with the work, or to acquire in anyway an unfair 
advantage over the other party. It is for the interest of the Government that its good 
faith and business responsibility shall be upheld . A policy which precludes legal redress 
will drive every prudent and responsible contractor out of the field of competition." 

See, also, Venable Construction Co. i;. U. S., 114 U. S., 776; Grant v. U. S., 5 Ct. 
Cls., 72; Ford v. U. S., 17 id., 60; 7 Comp., 361. So, held, that the provisions of a 
contract for constructing a vessel, which excludes extras of every description, do not 
apply to alterations from, or additions to, the plan fixed by the contract, made at the 
request of the Government. Bestor v. U. S., 3 Ct. Cls., 425. See, also, Moore v. 
U. S., 46 Ct. Cls., 139, where the contractor was allowed the cost of extra work 
caused by the faulty plan of the Government engineer. But where a contract 
expressly provided that it could be modified only by consent of the Secretary of 
the Treasury, held that the contractor could not recover compensation for work per- 
formed under a modification ordered only by the officer in charge of the work. Haw- 
kins V. U. S., 96 U. S., 689. See also 14 Ct. Cls., 514; Kennedy v. V. S., 24 id., 122; 
McLaughlin v. U. S., 36 id. ,138; 37 id., 197; Hyde v. U. S., 38 id., 649. 

93673°— 17 21 



322 CONTRACTS VII J 8. 

vided that any work required that was not included in the specifica- 
tions should be ordered in writing, Tield that as it appeared that the 
work was ordered by the officer m charge, this action on his part con- 
stituted a waiver of the contract provision. C. 10449, May 18, 1901; 
19437, Apr. 2, 1906. 

VII J 8. A supplemental contract can not be entered into if against 
the interest of the United States. The following cases illustrate the 
nature of the consideration, which will make a supplemental contract 
in the interest of the United States: 

The consideration was the acceptance at a reduced price of mineral 
oil which did not meet the test required by the original contract, but 
was suitable for Government use. C. 26846, Oct. 7, 1910. The 
consideration was a hona fide claim for compensation for extra work, 
not merely a colorable one, which the contractor agreed to relinquish. 
C. 20423, Sept. 25, 1906. A contractor for road work became insol- 
vent and was unable to proceed with his contract, and hia backer, 
who had advanced the securities upon wliich a surety company had 
become surety on the contractor's bond, together with the contractor 
and the surety proposed a settlement with the United States by the 
terms of which the United States was to retain all percentages and 
other moneys due under the contract and receive the penal sum 
of the bond, provided the Government released the contractor from 
further liabihty under the contract. The cost to the Government 
of finishing the road would be about S5,000 over the aggregate of 
the above sums. Held, that as the contractor was insolvent and 
therefore it would be impossible to recover more than the above sums 
from him, and as the effect of the settlement would be to give the 
United States control of the above sums of money so that they might 
be apphed on other more important work, the settlement was in the 
interest of the United States, and a supplemental contract as proposed 
might be made. C. 19802, May 28, 1906. Where a contract for 
dredging provided that 300,000 cubic yards of excavation per month 
must be made as a condition precedent to receiving monthly pay- 
ments, and this amount of excavation the contractor was unable to 
accomplish, although carrying on the work to the best of his ability, 
and the contractor was constructing another large dredge to enable 
him to reach and maintain a monthly average of 300,000 cubic ;^ards, 
but was financially embarrassed, lield, it would not be against the inter- 
ests of the United States to reduce the requirements of the contract from 
300,000 to 200,000 cubic yards of excavation per month for a Hmited 
period to enable the contractor to receive monthly payments which 
would result in the early construction of the additional dredge and 
consequent acceleration of the work. C. 12608, Aug. 8, 1903. Where 
a contract provided for partial payments for completed work only, 
held that if the work would be expedited by the payment for structural 
steel as soon as dehvered on the ground and before being placed in the 
building, and if it would be otherwise to the advantage of the United 
States to make such payments, it would be legal to enter into a supple- 
mental contract so as to provide for such payments, the supplemental 
contract to provide that the materials upon payment should become 
the property of the United States. C. 23642, Nov. 20, 1909. Where 
a contract called for furnishing bed casters known as the "Faultless" 
and the contractor was unable to procure that particular kind of 
caster fast enough to comply with his contract, and it was proposed 



R 



CONTRACTS VII J 8. 323 

to enter into a supplemental contract authorizing the substitution 
of a caster known as the "Legmount," held, there was no legal 
objection to such a supplemental contract provided the "Legmount" 
casters were as good as the "Faultless." If not equally good, the 
supplemental contract should provide for a reduction in price in order 
that the contract might not be against the interest of the United 
States. C. 23511, June 29, 1908. So, lield, also, where a contract 
called for "loose native hay" and it was proposed to substitute 
"Nebraska baled hay." C. 20906, Jan. 12, 1907. So, where, owing 
to a vague description in an advertisement, and carelessness on the 
art of both the United States and the contractor, a stretcher was 
urnished that was not the exact article desired by the United States, 
lield, that a supplemental contract might be entered into for the 
acceptance at a suitable price of the article actually furnished. 
C. 25407, Aug. 9, 1909. _ Where the Government sought to modify the 
plans for the construction of a pier, and the contractor consented to 
complete the pier in accordance with the modified plans provided, he 
was paid the balance due on the contract and $2,500 in addition and 
provided further that he should not thereby "prejudice any rights 
which he might have to apply to Congress for rehef and repayment 
of * * * the loss necessarily sustained by the modification of the 
contract," Tield that there was no legal objection to a supplemental 
contract as proposed, but recommejided that the supplemental con- 
tract should constitute a full settlement of all claims, so that there 
could be no claim to be acted on by Congress. C. 15887, Jan. 5, 1904' 
Wliere a request was made for the extension of a contract to a 
specific date, and it did not appear whether the proposed extension 
would be in the interests of the United States, recommended that the 
contractor be allowed to go on with the work, leaving the question 
of deduction for damages to be determined on the final settlement when 
the work was completed.^ C. 13873, Bee. 29, 1902; 13916, Jan. 7, 
1903. 

' WTiere it is not against the interest of the United States a contract may be extended 
to a specific date by a supplemental contract in writing, signed by the officer in charge, 
and this supplemental contract is usually required to be approved by the officer whose 
approval was necessary to the original contract. If the supplemental contract does 
not provide for a new consideration which would make the supplemental contract 
to the interest of the United States, it should be expressly provided therein that the 
contractor will continue liable for the liquidated damages, if any, and for such other 
damages as may be expressly stipulated for therein, if any, resulting from the delay, 
and that such damages shall be deducted in settlement with the contractor; or, if the 
contract provides for a penalty or makes no provision for damages it should be expressly 
provided in the supplemental contract that the contractor shall continue liable for all 
extra cost of superintendence and inspection and other actual damages caused the 
United States by the delay, and that they shall be deducted in settlement with the 
contractor. As such a supplemental contract will preserve the United States from 
any possible damage, the extension will not be against the interest of the United States. 

Where it is not against the interest of the United States, a contract may be indefi- 
nitely extended by the officer in charge, with the approval of the officer whose approval 
was necessary to the original contract, by waiving the time limit. (A formal sup- 

f)lemental contract is not necessary for the purpose. The waiver may be either by a 
etter expressly waiving the time limit, or by tacitly allowing the contractor to go 
on with the work after the time limit fixed by the contract has expired.) "WTiere 
such a waiver is made by the United States the contractor will remain subject to all 
stipulations of the contract, including those in regard to liquidated damages, if any; 
or, if the contract provides for a penalty or contains no provision in respect to damages, 
the contractor will remain liable for any extra cost of superintendence and inspection 
and other actual damages caused the United States by the delay in completion of the 



324 CONTEACTS VII J 9. 

VIIJ 9. Even after the expiration of the time limit provided 
for in a contract, if the contract is still in force, a supplemental con- 
tract extending the time of completion of a contract to a specified 
date may be entered into without advertisement where the interests 
of the United States will not be prejudiced.* C. lJf6Ji.9, July 1, 1903; 
15818, Jan. 22, 1904- So, also, where a contract required a con- 
tractor to commence delivery of certain articles under his contract 
on January 7, lield, that a supplemental contract, without advertising, 
providmg that deliveries should commence February 10, might be 
entered mto even after February 10 if the interests of the United 
States would not be prejudiced. 0. 7484, Dec. 28, 1899; 24207, Mar. 
13, 1909. 

VII J 10. Even after waiver of the time limit (not an extension to 
a specific date) partial payments may be made in accordance with 
the terms of the contract, as the effect of a waiver of the time limit 
is to leave all other provisions of the contract in force.^ C. 15818, 
Jan. 22, 1904. 

VII J 11. A party entered into a contract with the United States 
to do a certain amount of dredging between April 1 and August 1, 
1895. The contract containpd the follomng provision: "Should the 
time for the completion of the contract be extended, all expenses for 
inspection and superintendence during the period of the extension 
shall be deducted from payments due or to become due the contractor." 
He did not begin work at the time agreed upon, but on his own 
application and the recommendation of the engineer officer in charge 
was given from August 14, 1895, to January 1, 1896, in which to do it. 
He worked from the 14th of August through September, October, 
and November, completing part only of the work. His contract, was 
then arinulled and the uncompleted balance of the work let to another 
contractor. On the question whether the amount paid by the Gov- 
ernment for "superintendence and inspection" durmg the months 
last named should be deducted from payments due under the con- 
tract it was Tield that the deduction could not legally be made. There 
had not been an "extension" within the meaning of the contract. 
The work was to be completed during a specified period of four months, 
and during that length of time the Government had agreed to pay the 
expenses of superintendence and inspection. The later agreement 
changed the time at which the specified period should begui, but did 
not materially lengthen it. The extension contemplated by the 
contract was any period of time in addition to the four months which 

contract. As, in a case of waiver of the time limit, the contractor always remains 
liable for liquidated damages, if any, or extra cost of superintendence and inspection 
and other actual damages, a waiver of the time limit will usually not be against the 
interest of the United States. Wherever there is a waiver of the time limit there will 
arise an implied contract to complete the work within a reasonable time. 

The regular procedure for obtaining an extension of a contract to a specific date, 
or for obtaining a waiver of the time limit, is for the contractor to apply for it in writing 
at the time the conditions arise which threaten to occasion delay m the performance 
of the contract. Such application should be made in sufficient time to secure the 
action of the approving officer before the time limit has expired. It may, however, 
be made after the time limit has expired if no steps have been taken to annul or cancel 
the contract. 

» See VIII Comp. Dec, 104. 

^ See VIII Comp. Dec, 104, to the effect that the waiver of the time limitation in a 
contract leaves all other provisions of the contract in force, and for the performance of 
the work provided for therein the contractor is entitled to the price stipulated therefor 
in the contract, less the amount of damages arising from the delay. 



CONTRACTS VII J 12. 325 

the contractor might require to complete the work. But further 
lield, that if the time required by the succeeding contractor to com- 
plete the job, added to the time actually occupied by the first con- 
tractor, exceeded four months, then the expense of inspection and 
superintendence during such part of the total time as exceeded four 
months is a loss sustained by the Government by reason of the 
original contractor failing to fulfill his contract, and the original con- 
tractor is liable therefor. C. 24OO, July 8, 1896. Where a bond given 
for the due performance of a contract provided that the surety should 
be bound "as well during any period of extension of said contract 
that may be granted on the part of the United States as during the 
original term of the contract," Jield, that it is not clear that an 
extension of the time of commencement without a corresponding 
extension of the time of completion would be an "extension of the 
contract" within the meaning of the bond. C. 13906, Jan. 3, 1903; 
20423, Nov. 21, 1906. 

VII J 12. Where the only provision of a contract as to granting 
additional time for commencing or completing the work required that 
such additional time must be allowed by the contracting officer with 
the approval of the Chief of Engineers, held, that the Secretary of 
War has no authority to reverse or control their action in the prem- 
ises.i a 20410, May 5, 1908. 

VIII. A head of a department, in making and executing a public 
contract acts as an agent of the United States and in the absence of 
express statutoiy authority can not legally relinquish, by a supple- 
mental contract, by an increase of compensation to be paid by the 
United States, or otherwise, any right or property of his principal, if 
such action would he against the interest of his principal.^ Congress 

1 In Barlow v. United States, 35 Ct. Cls., 514, the syllabus is as follows: 

"Under a contract which provides that stone to be fm-nished by the contractor must 
be 'sandstone of quality approved by the engineer,^ the decision of the engineer binds the 
Government as well as the contractor. 

' ' Where a contract prescribes ' sandstone of a quality approved by the engineer, ' and the 
superior officer who entered into the contract requires ' the best sandstone tvhich can be 
obtained,' the stone required is not the stone contracted for, and the contractor can 
recover for the difference." 

In Baldwin's case, 15 Ct. Cls., 297, it was held that where a contract provides that 
the receiving officer may charge the contractor with loss resulting from neglect to 
deliver at the prescribed time, subject, however, to the approval of the department 
commander, the contractor is entitled to have exercised the discretion of the receiving 
officer and the department commander, and is not bound by the action of the receiving 
officer who is ordered by the post commander to make the charge and in obedience to 
the order does so without the approval of the department commander. 

In Kennedy v. United States, 24 Ct. Cls., 122, it was held that where the engineer 
in charge is authorized by the contract to extend the time for performance, the fact 
that the Chief of Engineers approves of his extending it to a day specified does not 
compel him to do so. 

2 In an opinion addressed to the Secretary of War, in regard to an application for 
relief by a contrac or for work on the Washington Aqueduct, Atty. Gen. Black (9 Op.., 
81) remarks as follows: * 'He now says he is doing the work at a loss, and asks you, 
in a memorial, either to give him a larger compensation than he bargained for or else 
to release him from the contract. You have no authority to do either of these things. 
You can not absolve him from his obligation to do the work; and, if he does it, you 
can not authorize him to be paid for it at higher price than the contract stipulates for. 
* * * In short, you have no power to relieve him from the hardship he complains 
of, either by giving him damages, by releasing him from his present contract, or by 
making a new one. * * * if the contractor quits the work or otherwise violates 
the covenants he has made with the Government, he must do so at his own peril and 
that of his sureties. " See, also, 2 Op. Atty. Gen., 482; 7 id. 62. 

In 15 Op. Atty. Gen., 481, it is said: ' 'It is asked that the contractor shall, without 
any consideration therefor, be released from the full performance of his contract and 



326 CONTRACTS VIII. 

alone can grant relief. Such action, however, could be taken if a con- 
sideration passed to the United States sufficient to make it to the 
interest of the United States. C. 17234, Dec. 16, 1904; 20875, Jan. 
7, 1907. Therefore the Secretary of War has no power, without proper 
consideration, to release a contractor from the due performance of his 
contract, or relieve or compensate him on account of losses suffered 
by him in fulfilling or attempting to fulfill his contract where there 
has been no breach on the part of the United States. C. 2402, June 
27, 1896. To release an ascertained debt due to the United States. 
C. 10550, June 5, 1901. To release a contractor from his obligation 
to pay liquidated or actual damages. C. 7314, Oct. 16, 1900; 19801, 
May 31, 1906; 22270, Oct. 28, 1907. To omit to charge a contractor 
with the difference between the contract price and the price which 
the Government was obliged to pay in supplying by purchase in the 
market articles failed to be furnished according to contract. R. 32, 
6, May 27, 1871; 37, 437, Mar. 28, 1876. To release a contractor 
from his contract on the ground that he has encountered unexpected 
difficulty in completing it, or that its execution wUl involve a mate- 
rial pecuniary loss, in other words, to relieve a contractor from a bad 
bargain. C. 262, Dec. 4, 1901; 2569, Sept. 3, 1896. To release a 

from the delivery of an article still required by the necessities of the Government, 
when (as before observed) the effect of such a course will be to give the contract to the 
highest bidder as to all supplies furnished under it. This would be virtually to give 
away the public property and funds and to disregard the law relating to the award of 
contracts. My opinion is that you have not the lawful power to grant the relief 
desired." 

In 17 Op. Atty. Gen., 370, it is said: "The company complains also that because of 
the refusal of the riparian proprietors to allow the dredged matter to be put upon their 
premises it is compelled to carry it a great distance, to pass through several draw- 
bridges, etc. This also was a thing to be considered by the conpany before under- 
taking the work. "WTiat it agreed to do is to remove and deposit the material in such 
place as shall be approved by the engineer in charge. The language is very plain. 
The obligation is perfect. Can the company be discharged from performance because 
the transportation is more difficult and to a greater distance than they at first expected? 
Upon a full consideration of the case made in the papers, I am unable to discover 
sufficient grounds to justify the Secretary of War in releasing said company from its 
contract, nor do I think he has the power to do so. He can not discharge the legal 
and just claim of the Government upon the company that it shall fulfill its obligations 
undertaken with knowledge of their extent and requirements." 

In V Comp. Dec, 632, it is said: ' 'Undoubtedly, upon a sufficient consideration, a 
new contract could legally be made releasing a contractor from forfeiture incurred, but 
the consideration would have to be real, substantial, and not imaginary, or one growing 
out of or based wholly upon the failure in performance of the conditions of the original 
contract. In the present case I am unable to see how the contractors have been 
damaged by the extension of the contract, or what real benefit will accrue to the 
United States by this extension. It is not difficult to see how the Government and 
the general public may have been injured by the failure of the contractors to complete 
the work at the time originally agreed upon . The presumption is that the work was 
needed or it would not have been undertaken; therefore, the time for its completion 
can hardly be called immaterial. The fact that the total cost of inspection and super- 
intendence will not be increased because of the extension can not be regarded as a 
consideration upon which to base a contract. , Furthermore, I am unable to see 
how the decreased obstruction to the channel (caused by the slower progress of the 
work) which was the direct result of the failure of the contractors to comply with the 
obligations of their contract, and which failure resulted in an extension of time for the 
completion of the project at the request and for the benefit of the contractors, and presum- 
ably to the detriment of navigators desiring to use a deeper channel, can be deemed 
a sufficient consideration to support a promise to waive an accrued forfeiture. To hold 
that this can be done would be to make the contractors the beneficiaries of their 
wrong." See, also, XII Comp. Dec, 409; Op. Atty. Gen., Feb. 14, 1913. 

In XIV Comp. Dec, 253, it was held that a modification of a contract by a supple- 
mental contract providing for an earlier partial payment to the contractor than is 



i 



CONTEACTS VITI. 327 

lessee from the payment of rent under the act of July 28, 1892 (27 
Stat., 321). C. 11731, Dec. 10, 1901; 21212, May 20, 1908. To 
release a surety company from a bond on another bond bemg pro- 
vided with two sureties of undoubted financial responsibility. C. 
5352, Sept. 28, 1900; 21991, Aug. 29, 1907. To release sureties on 
the bond of a contractor who had failed to perform his contract, the 
sureties representing that the}^ had been mduced to enter into the 
bond by false representations made to them by the contractor and 
that they were ignorant of what was required of a bondsman. R. 37, 
275, Jan. 22, 1876; C. 15601, Dec. 11, 1903. To release a guar- 
antor from the obligations he had assumed in a guaranty accompany- 
ing a proposal. C. 3489, Sept. 3, 1897; 5462, Dec. 14, 1898; 15932, 
Feh. 18, 1904. To cancel or nullify a bond or release a surety 
thereon.i ^ jggg^ j^^ ^2^ 1S96; 13145, Jan. 7, 1903; 22194, Nov. 
18, 1907; 5352, Aug. 22, 1900. To grant relief to a contractor for 
potatoes and onions, by canceling his contract or increasmg the 
prices, the contractor at the time of his bid having expected to raise 
these vegetables on his own farm, but the entire crop and others hav- 
ing been destroyed by a hail storm, obliging him to buy at high 
prices in the open market. C. 11208, Sep. 21, 1901; 11259, Sept. 21, 
1901. To accept mineral oil which does not come up to the tests 

specified in the original contract is not authorized without a new consideration there- 
for, and that the changed and stringent financial condition of the section of the coun- 
try where such contract is to be performed furnishes no consideration moving to the 
Government for such modification. See, also, XV Comp. Dec, 55 and 256. 

In VIII Comp. Dec, 106, it was said on the subject of the rightof a Government offi- 
cer to waive the time limitation in a Government contract : ' 'There can be no question 
that private persons may waive this limitation in a contract, and it is a general rule 
that the Government has the same power in respect to contracts that private persons 
have. (U. S.V.Smith, 94 U. S., 217, 218.) The only limitation upon the Government 
of which I am aware relates to the means of executing its powers. Its officers do not 
possess plenary powers, and it must be presumed that they are not authorized to 
sacrifice its interests. Therefore it has been properly held that a Government officer 
is not authorized to extend the time of a contract if such extension will operate to 
release the contractor or his sureties from liability for damages or be otherwise detri- 
mental to the interests of the Government." 

In XIII Comp. Dec, 322, it was held that when work is not completed under a con- 
tract until after the expiration of the period fixed in the contract for its completion, 
and li<}uidated damages have accrued for the period of the delay, an extension of time 
can not be granted after the expiration of such period and after the completion and 
acceptance of the work without a new and adequate consideration, as it would operate 
as a release or waiver of the liability of the contractor for liquidated damages for the 
delay. See, also, XI Comp. Dec, 394; XII id., 466; XIV id., 237. 

In General Order No. 167, War Department, Oct. 10, 1905, the following instructions 
were issued by the Secretary of War for the guidance of officers charged with the 
procurement of supplies: ' '5. Contracts once executed will be strictly construed, and 
no variation from standards or specifications will be permitted or authorized. If it 
be demonstrated that contract requirements are unreasonable, or that the prescribed 
tests are not practical, or that for any reason the stipulations can not be rigidly applied 
or enforced, such contract must not be modified but may be annulled with the approval 
of the Secretary of War, if for the best interests of the Government; and after again 
inviting competition from bidders, who are fully informed of the changed require- 
ments, a new award and contract can be entered into. To sanction variations or to 
relax stringency in any particular of an existing contract is irregular and is likely to 
give the contractor an advantage which is unfair to competitors whose proposals were 
based on the expectation of being held to the strictest observance of the published 
requirements." 

But in 28 Op. Atty. Gen., 121, where pending the execution of a contract the tariff 
was changed so as to impose a heavy loss on the contractor if compelled to carry out 
his contract, it was held that the Secretary of War could release the contraitor from 
his contract, althons:h the effect would impose a pecuniary loss on the Government. 

17 Op. Atty. Gen., 62. 



328 COKTKACTS IX A. 

required by the terms of the contract, although it may be a suitable 
article for the Government's use. C. 26846, Oct. 7, 1910. To sur- 
render an option of the United States to renew a contract for a series 
of years. C. 18832, Nov. 9, 1905. So, where a bidder through a 
clerical error proposed to furnish 600 jugs of lime juice at 75 cents 
instead of $1.50 per jug, and with knowledge of the error entered into 
a contract and completed the same, held, that while the mistake 
might have been a ground for declining to furnish the supplies, the 
contractor by entering into the contract with knowledge or the error 
had waived it, and a price additional to that named in the contract 
could not be paid.^ C. 8942, Sept. 13, 1900. And lield, to the same effect 
where through an error in calculation the lowest bid for installing heat- 
ing plants was $1,108.40 instead of $2,216.80, and the next and lowest 
bid was for $3,460, and the lowest bidder with knowledge of the error 
entered into a contract and completed the same. C. 19506, Apr. 17, 
1906. A contract provided that "the United States shall be entitled 
to the fixed sum of forty dollars as liquidated damages for each and 
every day's delay not caused by the United States * * * g^j^^j 
that the collection of said sum may, in the discretion of the Secretary 
of War, be waived in whole or in part." Held, that the provision 
purporting to give the Secretary of War the power to waive the liqui- 
dated damages is inoperative and void unless under the circumstances 
of the case it would be to the interest of the United States to waive 
such damages, that the contracting officer and the contractor have no 
power to vest the Secretary of War with such power to surrender the 
rights of the United States without compensation. Such power vests in 
Congress only. C. 22730, Feb. 10, and pec.7,1 908; 23642, Mar. 6,1911. 
Where a contract contained a provision "that this contract shall be 
subject to the approval of the Commissary General of Subsistence, 
United States Army, and be terminable at any time by him," held, 
this provision was mserted for the benefit of the United States, and 
does not authorize the terminating of a contract against the interests 
of the United States. C. 11259, Sept. 21, 1901. So, where a contract 
with a telephone company required the company to render a certain 
service at the rate of $4 a month, and the company demanded $5 a 
month on the ground that it had filed a new schedule of rates which 
had been approved by the Public Service Commission of the State of 
Washington, held that the Secretary of War was without authority to 
waive the rights of the United States acquired under the contract, 
and the Public Service Commission was without power to impair the 
obligation of a Government contract. C. 29280, Dec. 8, 1911, and 
Ja/n. 4, 1912. 

Where the same contractor had two contracts for furnisliing hay, 
the prices being different, and hay had been ordered and delivered 
under the low-priced contract and payments had been made and 
accepted under the low-priced contract, held that the dehveries of 
hay could not be subsequently considered as made under the high- 
priced contract. C. 21418, Apr. 22, 1907. 

IX A. The lowest and next lowest bids (from the same place of 
business) for supplying 25,000 mosquito bars were, respectively, 45J 

' But where a person contracted in writing to sell to the Government a quantity of 
shucks at GO cents a pound at a time when the market value was If cents a pound, and 
the shucks had been delivered and consumed, held, he could recover only the market 
value of the shucks. Hume v. U. S., 132 U. S., 406. 



CONTEACTS IX A. 329 

and 46| cents per bar. On the day following the opening of bids and 
before the award was made these bidders claimed that errors were 
made in copying their bids into the blank proposals, referring to 
their original memoranda to show that the price intended in one was 
75^ cents and in the other 76^, and asked to have the corrections 
made. To grant the requests would make another party the lowest 
bidder, at 67^ cents per bar. Held, that the mistakes were such as 
to exclude consent to the same thing, so that on acceptance of the 
bid there would be no true contract — one party intending one tiling, 
and the other party another thing; that therefore the proposals con- 
taining the erroneous prices should not be treated as binding upon 
the parties making them.^ C. 6802, July 31, 1899. Similarly, held, 
where a company submitted a proposal for furnishing 48 handcuffs, the 
price for the lot being $17.90, and it appeared that before the award 
was made it reported that it had intended to bid $179, and that the 
error was a clerical one, and it further appeared that the next lowest 
bid was $150. C. 5958, Mar. 4, 1899. SimiUarly, lield, where bids 
were invited for furnishing 1,250 gross of olive drab buttons of two 
sizes, one-half to be of each size, and the lowest bidder bid. for the 
total quantity without naming the size, and, as the result of corre- 
spondence, it appeared that the larger button cost considerably more 

' In Pollock on Contracts, under the head of "Mistake as excluding true consent, " 
it is stated that "It may happen that each party meant something, it may be a 
perfectly understood and definite thing, but not the same thing which the other 
meant. Thus their minds never met, as is not uncommonly said, and the forms 
they have gone through are inoperative;" and that in this "class of cases either 
one party or both may be in error, however that which prevents any contract fiom 
being formed is not the existence of error but the want of true consent," and that in 
such cases "we may say that the agreement is nullified by fundamental error; a 
term it may be convenient to use in order to mark the broad distinction in principle 
from those cases where mistake appears as a ground of special relief. " Wald's Pollock 
on Contracts, p. 582, Third American Edition. 

Under date of Jan. 14, 1891, Attorney General Miller (20 Op. 1), where an advertise- 
ment was made for proposals for installing an electric -light plant, and one of the 
bids was $4,350, and the bidder asked to withdraw the bid, claiming that it had been 
made erroneously instead of $9,350, the real bid, the first figure 4 being substituted 
for the figure 9 through a clerical error, held, that the bid was no bid at all and ought 
not to be considered, and that if accepted it would not be binding on the bidder. 

See, also, Moffett, Hodgkins & Co. v. Rochester (178 U. S., 373), where the covu"t 
held that a bidder was relieved on account of a serious mistake by which $1.50 per 
cubic yard was bid for certain excavation for which $15 per cubic yard would have 
been a reasonable charge, the court holding that there was no doubt as to the error 
having been made; that it was promptly availed of; and that "when this was done 
the transaction had not reached the degree of a contract, " citing with approval the follow- 
ing extract from the opinion of the Circuit Court: "The complainant is not endeavor- 
ing 'to withdraw or cancel' a bid or bond. The bill proceeds upon the theory that 
the bid upon which the defendants acted was not the complainant's bid; that the 
complainant was no more responsible for it than if it had been the result of agraphia 
or the mistake of a copyist or printer. In other words, that the proposal read at the 
meeting of the board was one which the complainant never intended to make, and 
that the minds of the parties never met upon a contract based thereon. If the defend- 
ants are correct in their contention there is absolutely no redress for a bidder for 
public work, no matter how aggravated or palpable his blunder. The moment his 
proposal is opened by the executive board he is held as in a grasp of steel. There 
18 no remedy, no escape. If, through an error of his clerk, he has agreed to do work 
worth a million dollars for ten dollars, he must be held to the strict letter of his con- 
tract, while equity stands by with folded hands and sees him driven to bankruptcy. 
The defendant's position admits of no compromise, no exception, no middle ground. " 
See, also, the decision of the Comptroller of Nov. 7, 1911, to the same effect, where, 
through a typographical error, a bidder submitted a bid of $285 per 1,000 feet, instead 
of $485 per 1,000 feet, for a certain cable. 



330 CONTRACTS IX A. 

than the smaller one, and that the bidder had clearly intended to 
bid only upon the smaller size button, he erroneously supposing that 
only one size was called for, this error having been partly contributed 
to by an error of the contracting quartermaster in a letter written to 
the bidder before the submission of bids. C. 28279, Dec. 5, 1911. 
Similarly, lield, where a bidder offered to furnish 2,000 halyards at 
19rV cents per iDound, which would make the cost of each halyard 
11|^^ cents, and it appeared the person making the bid had been 
instructed to bid not exceeding 19y**o cents per halyard, but as rope is 
usually sold by the pound, had inadvertently written the word pound 
instead of halyard. O. 8258, May 21 and July 6, 1900. Similarly, 
held, where the lowest bidder offered to do the plumbing in a set of 
quarters for $2,997 the next lowest bid being S4,460, and upon 
receiving the contract for execution the lowest bidder refused to 
execute it, claiming that his bid was only on half the set of quarters — 
the set being double. An examination of the details of the bid clearly 
supported this claim. C. 8786, Aug. 20, 1900. Similarly, held, where 
the only bid received for memorandum books was for 5 cents each, 
and it clearly appeared that the cost of manufacture of books exceeded 
5 cents each and that the price of 5 cents was the result of a clerical 
error. Similarly, held, where the lowest bid for a 12 months' sup- 

Ely of oats was $1.07 per 100 pounds, and at the opening of the 
ids the lowest bidder promptly called attention to his bid of $1.07 
and claimed it was an error and should be $1.17, and clearly showed 
that an error had been made in transposing figures, and asked to be 
permitted to correct the bid accordingly. It appeared that all other 
bids were substantially higher than $1.17. C. 28/^93, June 7, 1911. 
Similarly, held, where bids were invited for constructing "one bar- 
rack, two double sets and one single set officers' quarters," the lowest 
bidder offered to construct "four buildings numbered on plans 120-A 
and 121-E, and 136-B" for $42,700, not intending to bid on one of 
the double officers' quarters, and on the same day bids were opened 
wrote the quartermaster that his bid was not on all the buildings but 
on only "four buildings, one single officers' quarters, one double 
officers' quarters, and one barrack, making in all four buildings," and 
agreed to construct the additional set of officers' quarters for $6,500. 
The claim of the bidder as to his intention was supported by ample 
evidence. The next lowest bid was $49,243. C.8726, Aug. 5, 1900. 
A company submitted a proposal for manufacturing undershirts at 
68f cents per garment. Before the award was made the company 
claimed that an error of 10 cents a garment had been made in trans- 
ferring the figures for the cost of the work from the pa]:)ers made out 
by the bookkeeper (who was taken sick and laid up for 10 days) and 
who discovered the error when he returned to duty. The figures of 
the bookkeeper showed an estimate of the actual cost averaged 74^ 
cents per garment. In submitting the proposal this cost was erro- 
neously set down as 64 1 cents and 4| cents were added as profit, 
making the bid 68| cents, whereas it should have been 78J cents. 
The price was so low that the officer representing the Government 
would have noticed it was probably erroneous. Held, that the bid 
might be corrected to conform to the intention of the bidder, and then 
considered along with other bids. C. 250^8, May 27, 1909. The 
lowest bid for constructing quarters at Fort D, A. Russell, Wyo., 



CONTEACTS IX A. 331 

was $49,000; the next lowest bid was $55,450, and the estimate of 
the Quartermaster General's office for the work was $60,158. On 
the day following the opening of the bids the lowest bidder wrote to 
the Quartermaster General stating that he had made a serious mis- 
take in failing to add any percentage for profit, and subsequently 
declined to accept the work unless allowed to add 10 per cent for 
profit. Held, that the error in faihng to include the percentage for 
profit was a fundamental error in calculation, and that the bid did 
not express the true intention of the bidder, wliich was to make a 
bid covering his estimate for the work with the usual percentage for 
profit. C. 19795, May 28, 1906. The lowest bid for constructing a 
"sewer system, water-distributing system, the steel tank and trestle" 
at Fort Miley, Cal., was $9,682; the next lowest bid was $15,821. 
The lowest bidder refused to enter into a contract for the above con- 
struction, claiming that his bid was a mistake; that it was intended 
to be on the sewer system only. The contracting ofiicer stated that 
when the lowest bidder asked for the plans "he asked only for the 
sewer plans, stating that he did not desire to figure on the water- 
distributing system or the steel trestle and tank." Held, that the 
error was a fundamental one, and was clearly known to the contract- 
ing officers to be an error at the time of the bid and that the guar- 
antors of the bid could not be held on their guaranty. C. 12^46, 
Apr. 21, 1902. The lowest bid for arctic overshoes was $1.5425 a 
pair. The only other bid was $2.55, and previous bids for regular sizes 
had varied from $2.48 to $2.87 a pair. Wlien asked as to the source 
from wliich the articles would be furnished, the lowest bidder named 
the rubber company which had made the bid of $2.55. The lowest 
bid was made after an examination of only the sample, which had 
the word "Candee" branded on it, from wliich circumstances the 
bidder supposed the sample to be what for many years had been 
known to the trade under that name. But, in fact, there was 
another kind of arctic overshoe specially manufactured under the 
same name and selling for about $2.55 a pair, the existence of whicli. 
was unknown to the bidder. The specifications which had not been 
seen by the bidder clearly showed, however, that the desired article 
was to be manufactured to order. Held, that the bidder was not 
entitled to withdraw his bid on the ground that he had been misled 
by the standard sample, but was entitled to withdraw liis bid on the 
ground that the bid was so clearly an error as to price that the error 
was a fundamental one and must have been known to the repre- 
sentatives of the Government, and the bid could not properly be 
accepted with the knowledge of its being erroneous. C. 22558, Jan. 
7, 1908. 

A bidder proposed to furnish 50.000 pairs of canvas leggins, the 
duck to be "evenly and thoroughly dyed through in the fiber," the 
manufacture to commence; 30 days from date of award. The bidder 
requested that his bid be not considered or that he be allowed five 
months in which to commence the manufacture, giving as a reason 
for the request the fact tliat prior to submitting the bid a certain 
firm had promised to deliver in 30 days any desired quantity, but that 
a few days after opening the bids this firm notified the bidder that 
it had overlooked the requirement as to the material being dyed "in 
the fiber," and that in consequence of this requirement the price 



332 CONTEACTS IX B. 

would be at least 30 per cent higher and that no goods in any quan- 
tity could be delivered within five months. Thereupon the bidder 
attempted to obtain the material elsewhere and was told that the 
firm in question was the only one that could furnish that particular 
material. Held, that if investigation showed that it was a practical 
impossibility to procure the materials within five months, the time 
for commencing manufacture could lawfully be extended accord- 
ingly. C. 22587, Jan. 6, 1908. 

The lowest bid for the construction of a proposed railroad track on 
Sandy Hook was $46,000, the next lowest bid_ being $74,202. Sub- 
sequent to the opening of the bids the lowest bidder notified the con- 
tracting officer that an error had been made in its bid, and submitted 
an amended bid of $67,000, which it stated was "based on correcting 
error in former bid, making sum $60,200, and adding $5 apiece for 
driving 1,300 piles," which would be $6,800. In support of its claim 
the bidder presented the original lead-pencil estimate on which the 
bid was based, on which appeared an item for "40,000 feet piling, 
$0.34^, $1,380." This should have been $13^800, an increase of 
$12,420. In the lead-pencil estimate the total of the items was 
$40,725.60, the bid submitted being $46,000; the difference, about 
13 per cent of the estimate, being the bidder's profit. If the amount 
of the error, with the same percentage of profit thereon, were added 
to the bid, it would be slightly over $60,000. The amended bid, 
however, was $67,000, the difference being the proposed charge for 
driving 1,360 piles at $5 each, and profit thereon. With reference 
to the last item, the original lead-pencil estimate included an item 
for driving piles as follows: "Driving 1,352 piles, $2.20, $2,974.40." 
It did not appear that the 1,360 piles referred to in the amended bid 
were additional to those covered by the lead-pencil estimate. Held, 
that the bidder should be required to clearly establish his error by 
evidence under oath, and also establish that the lead-pencil memoran- 
dum was the original estimate on which the bid was based, and that 
tliis, in connection with the comparison of the bid itself with other 
bids, would be sufficient to show that the error occurred as claimed 
and would justify the reformation of the bid. Held, also, that the 
bid was based on a fundamental error and did not express the real 
intention of the bidder, and that it would be proper to allow the 
error to be corrected and to treat the bid so corrected as the real bid, 
and that the corrected bid should include the same percentage of 
profit on the amount of the error as was calculated in the bid, but 
nothing more. Held, also, that the bidder should not be permitted 
to amend his bid to include the proposed charge for driving 1,360 
piles at $5 each, as this item was covered by the original estimate and 
it did not appear the original estimate was the result of a fundamental 
error. C. 16544, J^^^V 6, 1904.^ 

IX B. Where bids were invited for "200 galls, oil, sperm, in gall, 
cans" and the lowest bidder submitted a sample labeled "sperm oil," 
and no tests were made at the time of the award, and the bidder was 
notified that his bid for "200 galls, oil, sperm, in gall, cans, like 
sample" was accepted, and upon delivery of the oil a chemical test 
revealed that the oil was not sperm oil, but fish oil, and the sample 
previously submitted was found to be the same kind of fish oil. Held, 
that the sale was one by both sample and description, and that it was 
not sufficient that the goods delivered conformed to the sample, but 



CONTRACTS IX C. 333 

they must conform also to the description.^ G. 2Jf.S32, Jan. 1^, 1909; 
26294, Feb. 28,^ 1910. So, where bidder offered to supply 500 dozen 
spools of " basting cotton" conforming to standard sample, held, that 
ii the standard sample was not known to the trade as "basting cotton" 
and was not such m fact the bidder could legally withdraw his bid. 
a 23732, Aug. 18, 1908. 

IX C. A bidder offered to furnish 1,600 pounds of bacon at 14| 
cents for $23.60 instead of for $236. The error was due to the care- 
lessness of a clerk of the bidder. The next lowest bid was for more 
than $236. A contract was entered into to furnish the bacon at 
$23.60. After part of the supplies had been fiirnished the error in 
calculation was discovered. Held, the contract was not binding on 
the contractor, and a supplemental contract could be entered into on 
the basis of paying for all supplies already furnished, and another 
contract made with the actual lowest bidder. G. 20323, Sept. 4, 1906. 

X A. Where a contract provided for installing a wireless-telegraph 
system in Alaska between two points, one of which was described as 
''at or near the mouth of Delta River and Bates Rapids," held, that 
the selection of a point 75 miles distant from the mouth of the Delta 
River would not comply with the terms of the contract. G. 12705, 
Apr. 3, 1903. 

Wliere a contract provided for the erection of quarters at a certain 
designated place in a post which all bidders were urged to examine 
before bidding, and after the contract had been signed the United 
States changed the site of the proposed quarters to a location about 
450 feet from the original site. Held, the contractor was under no 
legal obUgation. to carry out the contract on the new site, even 
though the new site was considered by the United States to be more 
advantageous than the old one. G. 20300, Aug. 31, 1906. ^ 

X B. Where a contractor, expressly and without condition or res- 
ervation, engages to perform a specific work or service, he is bound 
by his contract, although its execution prove to be beyond his power, 
if within the scope or other private exertion to accomplish. As 
where one contracted to remove the boiler of a steamer wrecked in 
Chesapeake Bay, but, after extended search, was unable to find it — 
held, that he could not legally be paid the amount stipulated in the 
contract. P. 39, 330, Mar. 30, 1890. Also, where a contractor 
agrees absolutely to furnish potatoes and onions at a stated price, 
without any condition limiting them to those he shall grow or which 
shall be grown in the vicinity, and without any saving exception 
on account of failure of crops. Held, he can not legally be excused 
from the performance of his contract by reason of the destruction 
of his own crops by a local hail storm. C. 11259, Sept. 21, 1901. 
Also, where a contractor agreed absolutely and unconditionally 
to supply fresh beef at the Presidio of San Francisco, it being pro- 
vided in the contract that in case of the contractor's failure ''the com- 
missary is authorized to supply by open purchase any deficiency 
resulting from such failure" and that the contractor "shall be 

' Section 14 of the uniform sales act, which is the law in practically every State, is 
as follows: "WTiere there is a contract to sell or a sale of goods by description, there is 
an implied warranty that the goods shall correspond with the description, and if the 
contract or sale be by sample, as well as by description, it is not sufficient that the bulk 
of the goods corresponds with the sample if the goods do not also correspond with the 
description." 



334 coNmACTS x b. 

charged with any excess of cost over that of furnishing at contract 
price," and the contractor failed to furnish beef for several days owing 
to his plant being partially wrecked by the earthquake of 1906, and 
the contractor sought to be relieved from the excess of cost resulting 
from the open purchase. Held, that, as the contract did not con- 
template beef from a particular herd or slaughtered on the premises 
of the contractor, such that if the herd perished or the plant was 
destroyed by act of God, the contract would become impossible of 
performance as contemplated, but as the contract simply became 
somewhat more expensive as a result of conditions growing out of 
the earthquake, the contractor could not legally be relieved of the 
charge. C. 19820, June 9, 1906. A contract for supplying certain 
hams for shipment to the Philippine Islands provided that the hams 
should be cured by a process not used in curing hams for the general 
trade. To be acceptable, they must have been in process of cure for 
not less than 60 days, during which time the United States was to 
have the right of making various inspections. The contract further 
provided "that in case of failure of the party of the second part (the 
contractor) to deliver any article as stipulated, the party of the first 
part (the United States) is authorized to supply, by open purchase 
or otherwise, any deficiency resulting from said, failure, the articles 
so procured to be as nearly as practicable of the same kind and quality 
in all respects as those to be furnished hereunder; and the said party 
of the second part shall be charged with any excess of cost over that 
of furnishing at the price named herein." Held, the contract did not 
relate to any particular hams but only to hams cured in a particular 
manner, and was an absolute and unconditional contract to furnish 
hams so cured, and an act of God making it impossible to comply 
literally with the contract as to the method of curing did not relieve 
the contractor from the obligation to substantially carry it into 
effect by furnishing other hams as nearly as practicable of the same 
kind and quality. Held, further, that if the Government did not 
give the contractor an opportunity to substantially comply with the 
contract after its literal comphance was rendered impossible by an 
act of God the contractor would be relieved thereby from any further 
obligation of the contract. C. 15152, Aug. 31, 1903. So, also, where 
a contractor in the Philippine Islands agreed absolutely and uncondi- 
tionally to supply foreign beef and mutton. Held, he would not be 
relieved from his contract by reason of a breaking down of the refrig- 
erating machinery. C. 18589, Oct. 11, 1907. Wliere the contractor 
in a Government contract for installing an electric-hghting system 
at Fort William McKinley, PhiHppine Islands, agreed "to complete 
in all respects the work called for under this agreement, on or before 
the date stipulated for such completion," without an exception of 
any kind, held that the contract was an absolute undertaking to 
complete the work by the stipulated time, and that the contractor 
could not be excused for his failure to complete the work within the 
time fixed, the failure being due to delays in procuring material from 
the United States by reason of strikes and washouts of railways in the 
United States. C. 2^076, Nov. 16,1 908. Wliere a contract was made 
to enlarge a certain levee, and about one-seventh of it was washed 
out before work was entered on, held that as the work to be per- 
formed under the contract was divisible, and as much the larger part 
of it was intact and the partial destruction had not rendered the 



CONTEACTS X C. 335 

remaining work more difficult or expensive, the partial destruction 
would not relieve the contractor from his obligation to enlarge the 
remaining portion of the levee. C. 15923, Feb. 18, 1904. 

X C. A contractor was required by the terms of his contract to 
furnish 2,000,000 pounds of "wild Ai'izona hay." By reason of a 
drought and consequent failure of the grass crop it became impossible 
to carry out the contract. Ildd, the drought constituted an act of 
God, and the contractor should be excused from performance of his 
contract. P. 56259, Oct. 31, 1S92. 

X D. Held with respect to the question whether the contractor for 
dredging in Great South Bay, N. Y., was released from the obligation 
to finish the contract by reason of an injunction obtained by the Lewis 
Blue Point Oyster Cultivation Co. — the dredging being through sub- 
merged lands leased by the State to that company for oyster culture, 
that where, as in this case, the impossibility is created by law and is 
only temporary, the obligation is not extinguished, but only sus- 
pended^ during the continuance of the injunction; and that the United 
States would not be liable to the contractor for any damages on 
account of the suspension. C. 22703, Feb. 5, 1908. 

X E. Where a contractor for the manufacture of certain khaki caps 
was forced into bankruptcy proceedings before the date fixed by the 
contract for its completion and a receiver was appointed, held that the 
fact that the contractor had become a bankrupt prior to the time set 
for the final delivery of the caps did not relieve him from the necessity 
of completing the contract according to its terms, and that the Govern- 
ment could, in accordance with the terms of the contract, decline to 
receive deliveries after the date of delivery as fixed by the contract. 
C. 27968, Mar. 13,1911. 

XI A. A bid for furnishing forage was accompanied by a duly 
executed guaranty that in case the bid should be accepted, the bidder 
would execute a contract within ten days after notice of such accept- 
ance. After the bids were opened, but before the bid was accepted, 
the bidder by letter withdrew it. Held, that the bidder could not be 
held for the reason that the bid alone did not constitute a contract 
under section 3744, R. S., which requires a contract "to be reduced 
to writing and signed by the contracting parties with their names 
at the end thereof." Held, also, that the sureties on the guaranty 
could not be held for the reason that the bid had not been accepted 
as required by the condition of the guaranty, as the bid was with- 
drawn before acceptance and having been withdrawn could not there- 
after be accepted.^ P. 65, 378, July 7, 1894; C. 419, Oct. 3, 1894. 

1 7 Mass. 324 ; 9 Cyc. 627, 630; Sherman County v. Howard, 98 N.W. 666. The injunc- 
tion was afterwards dissolved, it being held that the title of the lessee, under tJie grant 
from the State, was subject to the right of the Federal Government to take the sub- 
merged lands for the improvement of navigation without compensation to the State 
or its grantee. 

2 9 Op. Atty. Gen., 174; 15 id., 648, 651. In the latter opinion the Attorney General 
held that as the guaranty accompanying the bid was for the acts of the bidder "after 
being notified of the acceptance of said bid, " and the withdrawal of the bid having 
taken place prior to its acceptance, neither the bidder nor his sm-eties were liable upon 
the guaranty. He intimated, however, that a recurrence of the difficulty might be 
avoided by a properly worded statute or guaranty. In a later opinion, dated August 
31, 1894 (21 Op. Atty. Gen., 56), in an opinion rendered the Secretary of the Navy, 
he cited these opinions as the rulings of the Department of Justice "in the absence 
of any special statutory provision;" but referring to sec. 3719, R. S., which specially 
relates to bids in the Navy Department, and requires each proposal to be accom- 



336 CONTRACTS XI B. 

XI B. Paragraph 548, Army Regulations, 1910, provides: "Before 
the time for opening any bidder may, without prejudice, withdraw 
from competition by giving written notice of liis decision to the officer 

panied "by a written guaranty * * * that the bidder if his bid is accepted, 
will * * * give bond with good and sufficient sureties to furnish the supplies 
proposed," said: "Strictly construed, this does not prevent a withdrawal before 
acceptance. Liberally construed, in conformity with the manifest intent of the 
provision, I think it may fairly be held that it binds the bidder to stand by his bid, 
at least after the hoiu- of opening. The case being doubtful, I am inclined to give 
a liberal construction to the statute, since in this way only can its authoritative con- 
struction be obtained from the courts. I would therefore advise that Mi\ Neville 
be held to his proposal, and that no right of withdrawal on his part be recognized, but 
that he and his guarantors be held responsible. " 

A statute similar to sec. 3719, R. S., referred to above, regulates the letting of contracts 
by the War Department. The acts of Apr. 10, 1878 (20 Stats., 36), and Mar. 3, 1883 (22 
Stats., 487), authorize the Secretary of War to "prescribe rules and regulations to be 
observed in the preparation and submission and. opening of bids for contracts under 
the War Department. And he may require every bid to be accompanied by a written 
guaranty, signed by one or more responsible persons, to the effect that he or they 
undertake that the bidder, if his bid is accepted, will, at such time as may be pre- 
scribed by the Secretary of War or the officer authorized to make a contract in the 
premises, give bond, with good and sufficient sureties, to furnish the supplies pro- 
posed or to perform the service required. If after the acceptance of a bid and a noti- 
fication thereof to the bidder he fails within the time prescribed by the Secretary 
of War or other duly authorized officer to enter into a contract and fm-nish a bond 
with good and sufficient security for the proper fulfillment of its terms, the Secretary 
or other authorized officer shall proceed to contract with some other person to furnish 
the supplies or perform the service required, and shall forthwith cause the difference 
between the amount specified by the bidder in default in the proposal and the amount 
for which he may have contracted with another party to furnish the supplies or perform 
the service for the whole period of the proposal to be charged up against the bidder 
and his guarantor or guarantors, and the sum may be immediately recovered by the 
United States for the use of the War Department in an action of debt against either 
or all of such persons." Where under the above statutes a guaranty accompanying 
a bid provided that if the bid "be accepted * * * within sixty days * * * 
the said bidder * * * will, within ten days after notice of such acceptance 
enter into a contract with the proper officer," etc., and after the opening of the bids 
but before acceptance the lowest bidder gave notice of withdrawal of its bid, it was 
held by the Attorney General that under such a wording the bidder could withdraw 
his bid before acceptance without rendering the guarantors liable. Card 23180, 
May 12 & 18, 1908. Thereupon the form of guaranty to accompany bids was changed 
to read as follows, so as to hold the sureties" on the guaranty even in case of a with- 
drawal of the bid before acceptance. "The accompanying proposal, if not withdrawn 
prior to the opening of said proposal, shall remain open for sixty (60) days thereafter, 
unless accepted or rejected within that time; and if it be accepted in any or all of 
its items or any part or parts thereof, within said period of sixty (60) days, the said 

bidder , , will, upon written notice of such acceptance, deliver accepted 

items within the time and in accordance with the terms if said proposals and accept- 
ance, or will, if so requiied by the United States or its legal representative, within 
— days after written notification of said acceptance, enter into contract with the 
proper officer of the United States for the delivery of the accepted items in accord- 
ance with the terms of the said proposal and acceptance and will give bond, with 
good and sufficient sureties, for the faithful and pro]ier fulfillment of such contract. 
And we bind ourselves, our heirs, executors, administrators, and successors, jointly 

and severally, to pay the United States, in case the said bidder'- shall withdraw 

said proposal within said period of sixty (60) days, or shall fail to furnish such articles 
and services in accordance with said proposal as accepted, or shall fail to enter into 

such contract and fui-nish such bond, ii so required, within days after said notice 

of acceptance, the difference in money between the amount of the proposal of said 
bidder on the articles and services so accepted and the amount for which the 

{)roper officer of the United States may procure the same from other parties, if the 
atter amount be in excess of the former." 

In Haldane v. U. S., 69 Fed. Rep., 819, it was held that under a statement in a 
circular that a bid should not be withdrawn for sixty days the Government had no 
right to accept a bid after that period. 

Par. 548, Army Regulations, 1910, authorizes a bid to be withdrawn without preju- 
dice before the time for opening bids. See Scott v. U. S., 44 Ct. Cls., 524. 



CONTEACTS XI C. 337 

holding his bid, and when his bid is reached at the opening it will be 
returned to him or his authorized agent unread." The Government 
advertised for bids for certain supplies, the bids to cover the whole 
or any one or more of the articles. A bidder submitted a bid on hay, 
straw, and oats, and on the day previous to that on which the bids 
were to be opened wired the quartermaster to withdraw his bid on 
oats. Held, that the word "unread" in the above regulations applied 
only to the bid on oats, and did not prohibit the reading and considera- 
tion of the bids on hay and straw. C. 28967, Sept. 12, 1911. 

XI C. As a contract under the War Department inter alia, is 
not binding until reduced to writing and signed by both parties, as 
required by section 3744, R. S., the refusal of a bidder to execute a 
contract after the acceptance of his bid did not render him personally 
liable to the Government for damages for such refusal, although his 
guarantors would be liable under their guaranty. As the bidder did 
not sign the guaranty, he could not be held under the terms thereof. 
C. 12385, Apr. 17, 1902; 19523, Apr. 11, 1906. 

XI D 1. Where a bid was accompanied by a guaranty that in case 
the bidder should fail to enter into the contract within 10 days after 
notice of acceptance, the guarantors would pay the difference in 
money between the amount of the bid and the amount for which the 
proper officer of the United States might contract with another party 
to do the work if the latter amount should be in excess of the former, 
and the bidder by reason of a fatal illness (an act of God, which 
excused the failure to enter into the contract) , failed to enter into the 
contract before the expiration of 10 days, and the administrator of 
the deceased bidder refused to enter into the contract. Held, the 
guaranty should be construed strictly, that the guarantors did not 
undertake that the administrator of the deceased bidder should enter 
into the contract, and were not liable on the guaranty for his refusal 
to do so, and were not liable for the failure of the bidder to enter into 
the contract, as the time allowed him to do so had not expired on the 
date he was taken ill. C. 8904, Sept. 6, 1900, and Sept. 25, 1901. 

XI D 2. Where guarantors have undertaken that if a bid shall be 
accepted the bidder will ' ' within 1 days after being notified of such 
acceptance, enter into a contract" andf give bond. Held, that noth- 
ing less than actual notice will satisfy the terms of the guaranty, and 
that if the acceptance was given by mail the 10 days should not be 
computed from the date the notice of acceptance reached the address 
of the bidder, although there would be .a strong presumption of actual 
notice on that date, but from the date the bidder actually received 
the notice.i C. 8904, Oct. <9, 1901. 

XI D 3. Proposals were invited for four contemplated river im- 
provements. The lowest bid for one of the works was accepted and 
contract entered into, but no action on the proposals for the other 
three was taken at that time. The guaranties accompanying the 
proposals were conditioned on the acceptance of the bids witlim 60 
days. After the expiration of the period named in the guaranties 
the acceptance of the lowest bids on two of the works was recom- 
mended. Remarlced that there was no legal objection to such accept- 
ance, provided the bidders to whom it was proposed to award the 
contracts were willing to enter into the same, but if they declined 

1 See to same effect Haldane v. U. S. 69, Fed. Rep., 819. 
93673°— 17 22 



338 CONTRACTS XI E. 

to enter into contracts the guaranties could not be enforced. C. 371, 
Sept. 22, 1894. 

XI E. There is no statute or regulation requiring a guaranty to 
accompany a bid, byt under the act of March 3, 1883 (22 Stat., 487), 
which provides that the Secretary of War "may require every bond 
to be accompanied by a written guaranty," etc., the Secretary may, 
and in practice usually does, require one. C. 9061, Oct. 16, 1900. 
Under the above statute there would be no legal objection to pro- 
viding by regulation for a "blanket guaranty" to cover all bids by 
a particular bidder during the fiscal year, though there might be 
practical objections owing to the fact that the contracting for the 
War Department is not centralized. A ''general guaranty" so 
worded that it might be submitted with any bid the bidder might 
make during the fiscal year would be preferable. Such a guaranty 
could be accepted under existing regulations. C. 9061, Oct. 16, 1900; 
18880, Nov. 28, 1905, arid Oct. 12, 1906; 23330, May 29, 1908. 

XI F. Paragraph 533, Army Regulations, 1895 (543 of 1910), pro- 
vided that "guaranties, signed by two responsible parties, will be 
required to accompany proposals whenever in the opinion of the 
officer authorized to make the contract they are necessary to protect 
the public interests, and when so required no proposal unaccompanied 
by a guaranty, made in manner and form as directed in the adver- 
tisement or specifications, will be considered." Where a guaranty 
was required to accompany a proposal and none was furnished, hetd 
that the contract itself would nevertheless be valid, the regulation 
being viewed as directory only. C. 6285, Apr. 20, 1899; 7613, Jan. 
26, 1900; 7956, Mar. 31, 1900; 14535, Apr. 25, 1903; 20670, Nov. 26, 
1906; 21707, Jan. 21, 1907. In good faith to other bidders a bid 
without a guaranty should not be accepted, C. 20670, Nov. 26, 1906; 
21707, June 21, 1907. 

XI G. Where bids were required to be accompanied by a guaranty 
and bidders were notified that no proposal unaccompanied by a guar- 
anty would be considered and a bid was made without a guaranty 
but the following entry was made on the bid: "Annual guaranty for 
1910 on file," which entry referred to a guaranty on file in the Navy 
Department and which applied to that department only, and upon 
being so notified the bidder within a few days after the opening of the 
bids filed a suitable bond, held, the bid could not properly be con- 
sidered. C. 27062, July 22, 1910. 

XI H. Specifications and instructions for the use of bidders had 
attached to them a form of guaranty to accompany proposals, but 
they did not contain any distinct provision to the effect that a 
guaranty would be required or that no proposal would be received 
which was unaccompanied by a guarantv. Held, that an unguaran- 
teed bid might be accepted. C. 21707, Jan. 21, 1907. 

XI I. The lowest bickler failed to furnish a guaranty, one for $500 
being specifically required in the instructions to bidders, but sub- 
mitted his certified check, addmg to his proposal and signing the 
following statement: "In lieu of above we submit certified check 
to the amount of guarantee." Held, that as the certified check was 
submitted in lieu of the guaranty it could be applied to secure the 
United States on the conditions specified in the instructions, and 
should be treated as a substantial compliance with })aragraph 533, 
Army Regulations, 1895, which provided that, "Guaranties, signed 
by two responsible parties, will be requireil to accompany proposals 



CONTRACTS XI J. 339 

whenever in the opmion of the officer authorized to make the contract, 
they are necessary to protect the pubUc mterests, and when so 
required, no proposal unaccompanied by a guaranty, made in manner 
and form as directed m tlie advertisement or specifications, will be 
considered."^ C. 7613, Jan. 26, 1900. 

XI J. A bidder gave his certified check for $500 in lieu of a guaranty, 
but his bid having been accepted faUed to enter into the contract, 
and the Government thereupon contracted with another party, at a 
price more than $500 in excess of the bid. Held, there bemg no 
written contract as required by section 3744, R. vS. on which the 
bidder could be held, the bidder is not liable to the Government 
beyontl the amount of the check for his failure to enter into the 
contract. C. 28515, June 21, 1911; 28928, Sept. 6, 1911. 

XI K. A contract was entered into for the construction of two 
derricks, the specifications stating that the time of delivery would be 
an essential factor hi determinmg tlie awards of the contract, and 
requiring bids to be accompanied by a certified check for $1,000 which 
the specifications stated would "be retained until the completion of 
the contract." The contractor failed to commence the execution of 
his contract, causmg the Government to relet the contract at a price 
$2,150 hi excess of the former. Held, that the mtention of the parties 
was that the check should be held to i-eimburse the United States 
for any loss it might sufTer by reason of the failure of the contractor 
to comply with his contract, and that the check should be cashed 
and applied on the loss to the Government, and suit mstituted for the 
balance of the loss not covered by the check. C. 15966, Feb. 26, 1904- 

XI L. The successful bidder for the purchase and removal of certain 
buildmgs deposited the sum of $225 with the quartermaster as a 
guaranty for the faithful performance of his contract. The con- 
tract was duly entered into, but the contractor failed to complete 
it as required by the term of the contract. Held, that while the 
money deposited could not be forfeited to the United States so as to 
require it to be deposited in the Treasury, still it was held charged 
with a certain trust, and was subject to be applied to the completion 
of the contract, and that after the uncompleted work had been per- 
formed in as economical a manner as possible the remamder, if any, 
should be returned to the contractor. C. 29276, Bee. 2, 1911. 

XII A. Section 3648, R. S., provides in part that: "No advance of 
public money shall be made m any case whatever. And in all cases 
of contracts for the performance of an}'' service, or the delivery of 
articles of any description, for the use of the United States, payment 
shall not exceed the value of the service rendered, or of the articles 
delivered previously to such payment." Held, the payment of rent 
in advance for lands leased by the Government, of which it has been 
placed in possession by the lessor is not in violation of section 3648, 
R. S.2 a 21506, Mar. 17, 1908, and July 23, 1908. 

XIII A. Section 3679, R. S., provides that — "No department of 
the Government shall expend, in any one fiscal year, any sum in 
excess of appropriations made by Congress for the fiscal year, or 

* Par. 543, A. R., of 1910, authorizes the use of certified checks by providing that 
"at the option of bidders certified checks for the amount of the guaranty required 
may be received in place of the written guaranty. These checks will be kept in a 
secure place, and will he returned to bidders by the purchasing officer when no longer 
required to protect the interests of the Government." 

2 See XII Comp. Dec, 782, 



340 CONTRACTS XIII A. 

involve the Government in any contract for the future payment of 
money in excess of such appropriations." Held, under this section 
that all contracts, based on an annual appropriation, by which the 
Government may be bound for the future payment to contractors of 
any moneys in excess of the appropriations of the fiscal year are 
unauthorized and incapable of being enforced at law, so far as they 
relate to such future payments.* R. 31, 1^.0, Nov. 11, 1870. So, 
such a contract purporting to be for the "calendar year" 1872 would 
be unauthorized, as it would cover parts of two fiscal years. R. 31, 
392, May 18, 1871. Military contracts (including leases) under an 
annual appropriation will thus, where practicable, properly be made 
to run concurrently with the fiscal year in or for which they were 
made. R. 35, 613, Oct. 16, 1874. So, Jield., that a contract of lease 
made for a term of years (as three, five, or ninety-nine years), at a 
certain stated rent, to carry out an annual appropriation would be in 
derogation of Section 3679, R. S., and, unless S2)ecially authorized 
by some other statute, inoperative to bind the Government for a longer 
period than the fiscal year, even though providing that the payment 
for rents after the fiscal year should be contingent upon future appro- 
priations.2 R. 32, 6^2, May 27, 1872; 42, 677, June 5, 1880; 43, 98, 
Nov. 28, 1879. Held, also, that a lease of land at a certain rent for 
an indefinite term, payable out of an annual appropriation, would not, 
in the.absence of specific statutory authority, be legal or operative be- 
yond the end of the existingfiscal year. R. 36, 315, Mar. 13, 1875. So, 
of a proposed contract by the United States for the use (for a fixed 
compensation) of a feriy for an indefinite period, the appropriation 
being an annual one. R. 4^, 4^4, Dec. 17, 1879. Or for the rent of 
telephones for "one year and thereafter until terminated" by writ- 
ten notice, the appropriation being an annual one. C. 4722, Aug. 3, 
1898. Where it was desired to occupy premises for a longer term 
than one year, the appropriation being annual, advised that a lease 
should be taken to the end of the current fiscal year at a certain 

1 In Hooe v. U. S., 218 U. S., 322, the syllabi are as follows: 

Congress, proceeding under the Constitution, declares what amount shall be drawn 
from the Treasury in pursuance of an appropriation. 

Heads of departments can not by express or implied contract render the Govern- 
ment liable for an amount in excess of that expressly appropriated by Congress for 
the subject matter of the contract. 

When an officer of the United States takes or uses private property without author- 
ity of law he creates no condition under which the Government is liable by reason of 
its constitutional duty to make compensation. If private property has been taken 
or used by an officer of the United States without authority of law the remedy is not 
with the courts, but with Congress alone. 

A claim for such compensation does not rest on the Constitution, and as an imau- 
thorized act of the officer does not create a claim against the United States, the Court 
of Claims has no jurisdiction thereof under the Tucker Act of Mar. 3, 1887, 24 Stat., 
505. 

One renting a building to a department of the Government and receiving the entire 
appropriation for rent for such department has no claim against the Government for 
any amount in excess of the appropriation, even though he demands more and though 
he expressly excepts a part of the building from the lease and the department actually 
occupies the part reserved, nor has the Court of Claims jurisdiction of such a claim as 
one arising under the provision of the Constitution that private property shall not be 
taken without compensation. 

^ See McCallum's case, 17 Ct. Cls., 92, to the effect that a lease for a term of years 
founded on an annual appropriation is binding on the Government only until the end 
of that year, with a future option from year to year till the end of the lease. See also 
Geddes ii. U. S., 38 Ct. Cls., 426, and authorities cited. 



CONTRACTS XIII B. 341 

rent, and then a new lease be entered into for the next fiscal year, 
and so on; a fresh lease being necessary for each fiscal year, though 
the successive leases be mere repetitions and extensions of the orig- 
inal lease and though it be expressly stipulated in the original lease 
that the United States shall have the privilege of such extensions if 
desired. R. 32, 642, May 27, 1872; 42, 677, June 5, 1880. But 
held, that as the main object of the statute was to protect the United 
States from arbitrary expenditures and improvident pecuniary obli- 
gations on the part of the executive officials, it would not apply to 
contracts which do not bind the Government to the payment of 
money, and therefore would not preclude a lease for five or more 
years of land required for mihtary purposes, where no rent whatever 
was reserved therein, or where the rent reserved was a mere nominal 
sum inserted by way of formal consideration — ^as $1 per annum, 
R. 42, 664, Apr. 1, 1880; 676, June 5, 1880. Also, where an appro- 
priation is a permanent one, a contract providing for payments tnere- 
rrom may be made covering a greater period than the current fiscal 
year. 0. 14919, July 9, 1903. Also, where section 1661, R. S., as 
amended by the act of June 22, 1906 (34 Stat. 449), provided that 
"the sum of two milhon dollars is hereby annually appropriated to 
be paid out of any money in the Treasury not otherwise appropriated, 
for the purpose of providing arms," etc., for issue to the muitia "such 
appropriation to remain available until expended," and the act fur- 
ther provided that the appropriation should be apportioned among 
the States and Territories on a certain basis, and a lease was entered 
into for five years, the rent to be paid annually in advance and the 
lease expressly reserved the "option on the part of the lessee (the 
United States) to ternunate this lease at any time within said term 
upon giving the lessor ninety days' notice thereof," held, that in view 
or the reservation of the option to terminate the lease it was legally 
unobjectionable. C. 19798, June 5, 1907. And, under the same 
statute (34 Stat. 449), where a lease was made covering parts of two 
fiscal years held, it would be legal to reserve or set aside from the 
allotment already made (which is a permanent appropriation) a suffi- 
cient sum to pay the rental for the entire period of the lease, and 
after the end of the fiscal year to reserve or set aside from the allot- 
ment then available (which is another permanent appropriation) 
the rental for the remainder of the period of the lease, tlie effect 
being to have always on hand for that purpose a sum sufficient to 
pay all future rent up to the end of the lease. C. 21506, Oct. 18, 
1907; 19798, May 27, 1907. But in a case involving enhsted men, 
where the payments of the extra-duty pay authorized by section 
1287, R. S., was omitted to be appropriated for in a certain fiscal year, 
held, that notwithstanding the provisions of section 3679, R. S. and 
the act of May 1, 1884 (23 Stat. 17), the services of the men might 
be requu-ed and accepted under the express understanding that the 
payment therefor depended upon Confess, and that their rendition 
of service would not give them any claim upon the United States 
unless Congress should appropriate for such payment. R. 55, 43, 
Sept. 6, 1886. 

XIII B. Section 3679, R. S., as amended by the act of March 3, 
1905 (33 Stat., 1257), is as follows: "No department of the Govern- 
ment shall expend, in any fiscal year, any sum in excess of appropri- 
ations made by Congress for that fiscal year, or involve the Govern- 



342 CONTRACTS XIII B. 

merit in any contract or obligation for the future payment of money 
in excess of such appropriations unless such contract or obligation 
is authorized by law. Nor shall any department or officer of the Gov- 
ernment accept voluntary service ^ for the Government or employ 
personal service in excess of that authorized by law, except in cases 
of sudden emergency involving the loss of human life or the destruc- 
tion of property. All appropriations made for contingent expenses 
or other general purposes, except appropriations made for the ful- 
fillment of contract obligations expressly authorized by law, or for 
objects required or autliorized by law without reference to the 
amounts annually appropriated therefor, shall, on or before the 
beginning of each fiscal year, be so apportioned by monthly or other 
allotments as to prevent undue expenditures in one portion of the 
year which may require deficiency or additional appropriations to 
complete the service of the fiscal year; ^ and all such apportionments 
shall be adhered to except when waived or modified in specific cases 
by the written order of the head of the executive department or other 
Government estabhshment having control of the expenditure; but 
this provision shall not apply to the contingent appropriations of 
the Senate or House of Representatives; and all such waivers or 
modifications, together with the reasons therefor, shall be communi- 
cated to Congress in connection with estimates for any additional ap- 
propriations required on account thereof. Any person violating any 
provision of this section shall be summarily removed from office 
and may also be punished by a fine of not less than one hundred 
dollars or by imprisonment for not less than one month. " The pur- 
pose of this section is to cause the expenditure of the several appro- 
priations for the support of the executive departments of the Gov- 
ernment to be so supervised as to prevent deficiencies from arising, 
except in a case of emergency. There are excluded from the opera- 
tion of the statute appropriations "for objects required or authorized 
by law without reference to the amounts annually appropriated 
therefor. " Held, that section 3732, R,. S., which authorizes purchases 
of clothing, subsistence, forage, etc., to be made, where an appropriation 
has been exhausted, provided the purchases do not exceed the neces- 
sities of the current year, is not affected by section 3679, R.. S., as 
amended,^ but advised that purchases should not be made under 
section 3732 while Congress was in session, but Congress should be 
notified of the deficiency. C. 19675, May 9, 1906. So, also, leld, 
that section 3732, R. S., is not affected by section 3679, R. S., as 
amended by the act of February 27, 1906 (34 Stat., 49), which for 
present purposes is substantially the same as noted above. C. 22225, 
Oct. 18, 1907. So, also, paragraphs 496 and 550, Manual of the Medi- 
cal Department, which provide for utOizing the services of the 

^ In XI Comp. Dec, 622, it is said: " ' Service ' means the performance of someduty 
or labor for another; 'voluntary service,' the performance of some duty or labor /reeZy 
or of one'' s own accord for another. 

"Where the title remains in the proposed vendor, without any a^eement for sale, 
the labor and expense incurred by said proposed vendor in the installation of an 
appliance on a naval vessel or in a navy yard /or trial purposes only is, in my opinion, 
labor and expense incurred by said vendor /or his own benefit and in his own behalf a.3 
an incident to or necessary concomitant of a proper exhibition of his appliance for sale, 
and is not 'service' or 'voluntary service' within the meaning of section 3679 of the 
Revised Statutes as amended." 

2 See XIII Comp. Dec, 97. 

3 See XI Comp. Dec, 564. 



CONTRACTS XITI C. 343 

authorized private societies for the aid of sick and wounded, and for 
using the services of civilian physicians, nurses. Utter bearers, cooks, 
etc., voluntarily offered, are not affected by section 3679, R. S., as 
amended by the act of February 27, 1906, as the services under the 
above paragraphs are rendered in time of war and great public emer- 
gency and without the expectation of reimbursement, are in Ivehalf 
of the sick and wounded and are calculated to prevent the ''loss of 
human life" within the meaning of the statute, and they include 
services rendered by the Red Cross, wluch is expressly authorized by 
law and fully sanctioned to treaty stipulation, while on the other 
hand "voluntary services" under section 3679, R. S., as amended, 
are such as are rendered with the understanding that they are to be 
made the basis of a subsequent claim for compensation. C. 20866, 
Jan. 2, 1907. The acceptance of "voluntary service" under para- 
graph 3679, as amended, means that the service is rendered under an 
agreement whereby a claim for payment may subsequently be made 
against the Government. C. 20916, Jan. 12, 1907. Held, that the 
apportionment under section 3679, R. S., as amended, may be 
monthlv or quarterly, or in part montlily and in part quarterly, or for 
unequal periods. The apportionment need not be uniform but the 
amounts allotted to each month, q[uarter, or other unit may vary, 
and held, also, that it was not the intent of Congress to prohibit the 
occurrence of deficiencies, but to require a resort to such measures 
of super\dsion as will be calculated to prevent their occurrence or to 
minimize their amount. C. 18240, June 30, 1905. Held, further, 
that under section 3679, R. S., as amended, bills incurred in one ap- 
portionment period in excess of the apportionment may be paid m 
the next or in any subsequent period, provided the payment is within 
the proper fiscal year. C. 18240, Feb. 2, 1906. Wlien an appor- 
tionment under section 3679, R. S., as amended, has been made, 
it is the duty of the head of a department, as for instance the Quarter- 
master General, to see that the apportionment or allotment is not 
exceeded, but a disbursing officer under the Quartermaster General 
would not be charged with any duty except in the case where the 
disbursing officer disbursed an entire appropriation. As a single 
disbursing officer would control and disburse no more of the appro- 
priation than was furnished him by the Quartermaster General on 
duly approved estimates which had been submitted by the disburs- 
ing officer, it would be impossible to fix upon any one of several dis- 
bursing officers the responsibility for exceeding the apportionment 
in any particular month or other period of apportionment. If a dis- 
bursing officer incurred obligations in excess of the allotment to him 
he could be tried for neglect of duty, but would not be subject to the 
penalty provided by the act of Congress. C. 18240, July 11, 1905. 

Xlli C. Section 3732, R. S., provides that— "No contract or 
purchase on behalf of the United States shall be made, unless the 
same is authorized by law or is under an appropriation, adequate to its 
fulfillment, except in the War and Navy Departments, for clothing, 
subsistence, forage, fuel, quarters, or transportation, which, however, 
shall not exceed the necessities of the current year. ^ Where a 

• Sees. 3679 and 3732, R. S., are to be read together as one law. 15 Op. Atty. Gen., 
124, 209. These two sections apply to the public service in general and must yield 
to special provisions relating to a particular department. New York Cent. R. R. 
Co. V. U. S., 21 Ct. Cls., 468. It will be observed that section 3732, R. S., limits 
the power of the executive department, in making contracts binding upon the 



344 CONTRACTS XIII C. 

purchase of subsistence stores had been made in excess of the appro- 
priation, held that it is well settled that it is beyond the power of 
an officer charged with making purchases to issue an undertaking 
in the nature of a certificate of indebtedness, but that there is no 
legal objection to advising the vendor by letter of the essential 
incidents of the purchase, and of the reason whv pavment has not 
been made on delivery. ^ C. 257 S9, Nov. 17, 1909. 

Although public contracts can not in general be made in advance 
of, or in the absence of, a proper appropriation for the purpose, or 
other special statutory authority, yet from this rule are expressly 
excepted, by section 3732, R. S., military and (naval) contracts "for 

Government, to two cases: First, where the contract is authorized by law, second, 
where there is an appropriation sufficient to cover the amount contracted for. Under 
the first case it has been held by the Attorney General in 15 Opins., 240, that to 
be "authorized by law" it must appear that express authority was given to make 
such contract, or that such authority was necessarily to be inferred from some duty 
imposed upon, or from some authority given to, the person assuming to contract on 
behalf of the United States. (See, also, 3 Ct. Cls., 43.) In Chase v. U. S., 155 U. S., 
500, it was held that the power of the Postmaster General "to establish post offices" 
did not "authorize" him within the meaning of section 3732, R. S., to lease prem- 
ises for a post office for twenty years. Under the first case, where the contract is 
authorized by law, a contract may legally be made for the entire project authorized, 
the contract to be limited by the amount then fixed, if a limit was then fixed, even 
though the amount covered by the contract is in excess of the annual appropriation, 
but the actual payment must be limited to the amoimt in the Treasury appropriated 
for the project. Under such a contract, appropriations made subsequent to the 
fiscal year in which the contract was made, could be used in paying for the work 
contemplated by the contract. Under the second case, where the only power to enter 
into a contract arises from the existence of an appropriation sufficient to cover the 
amount contracted for, the power to contract is limited by the appropriation. A 
contract for a larger amount than appropriated is void. As soon as the appropriation 
is exhausted the power to contract is at an end. If a subsequent appropriation is 
made this gives rise to a new power to contract. Ill Comp. Dec, 438; IV id., 318; V 
id., 968; IX id., 422; X id., 284; XIII id., 478; XIV id. ,755; 4 Op. Atty. Gen., 600; 9 
id., 18; 15 id., 235; 19 id., 654; Bradley v. U. S., 98 U. S., 133; Chase -y. U. S.; 
lb), id., 500. Under the second case a contract in excess of the appropriation would 
not be binding even though the contract expressly provided that it should be con- 
tingent upon future appropriations. In 15 Op. Atty. Gen., 235, it was held that such 
a contract would not "be binding so far as to affix itself to future appropriations, even 
if it is subject to the contingency that such appropriations shall be made," referring 
to an opinion of Attorney General Mason in 4 Op., 490, where such a contract proposing 
to bind the Government to payments in advance of appropriations "was held to be of 
no validity, even though it provided that such contract should depend for its validity 
upon the contingency that an appropriation should be made and such appropriation 
was, in fact, thereafter made." (See also, Bradley v. U. S., 98 U. S., 104; IX Comp., 
424.) 

Where a contract is authorized without restriction as to cost, the Government would 
be liable for "extra" work and materials accepted by it, and, also, where a contract 
is made under a general appropriation, the contractor is not bound to know the con- 
dition of the appropriation and the Government will be liable for "extras," but where 
a contract on its face assumes to provide for all the work authorized by an appropriation 
the contractor is bound to know the amount of the appropriation and can not exceed 
it by doing "extra" work. 2 Ct. Cls., 151; 16 id., 528; 18 id., 146, 496; 21 id., 188; 
31 id., 126; 33 id., 1. 

2 The practice of issuing certificates of indebtedness was disapproved in G. 0. 77, 
A. G. O., July 24, 1873, in the following language: "Disbursing officers are not allowed 
to issue vouchers, which act as due bills against the United States, for unpaid accounts. 
The only exceptions under the foregoing will be the issuance of a certified statement 
of personal services and of wages due, in the case of an employ^ discharged, and not 
paid at time of discharge for want of funds." But the Secretary of War may properly 
issue an order authorizing paymasters to make a certificate upon the accounts of 
officers in the following form: "The within account is believed to be correct, and would 
be })aid by me if I had public funds available for that purpose." Such certificate 
would not come under the prohibition of section 3679, R. S. 



CONTRACTS XIII D. 345 

clothing, subsistence, forage, fuel quarters or transportation," ^ which, 
however, it is added, "shall not exceed the necessities of the curre]it 
year." ^ Such contracts may therefore be entered into irrespective of 
the adequacy of the appropriations, or entirely on credit, where Congress 
has omitted (as it did mthe session ending Mar. 4, 1877), to makeany 
appropriations at all for the Army for a fiscal year.^ But Jield that by 
the term ''current year" was to be understood current fiscal year, and 
that, in the excepted cases, the mihtary authorities could bind the 
Government by contracts only for necessary swppUes for the fiscal 
year in which such contracts were made. R. 38, 504, Mar. 8, 1877; 
42, 135, Jan. 29, 1875; G. 26334, Mar. 10, 1910. 

The act of June 12, 1906 (34 Stat., 255), which is identical in its 
wording with section 3732, R. S., except that it includes "medical 
and hospital supplies" among the articles that may be purchased 
without a specific appropriation, is permanent legislation. C. 26334, 
Mar. 10, 1910. 

XIII D. Section 3733, R. S., provides that "No contract shall be 
entered into for the erection, repair, or furnishing of any public build- 
ing, or for any public improvement which shall bind the Government 
to pay a larger sum of money than the amount in the Treasury appro- 
priated for the specific purpose." By the act of June 16, 1890 (26 
Stat., 157), the Secretary of War was "authorized and directed to 
cause to be erected at tne National Armory, Springfield, Mass.," a 
building for machine shops, etc., not to cost over a specified total of 
$211,639.54. By a subsec^uent appropriation act of August 30, 1890 
(26 Stat., 395), an appropriation was made of $100,000 "to commence 
the erection" of the same building. Held, that a contract might be 
entered into with a proviso that only $100,000 shall be paid for the 
satisfactory completion of the whole work until Congress makes an 
appropriation for the completion of the shops, even though it does 
conditionally bind the Government for a greater sum than has been 
appropriated. Held, further, that the act of June 16, 1890, should be 
taken as an exception to the rule stated in section 3733, R. S., and as 
sufficient authority for making the contract under consideration.* 
P. 43, 375, Oct. 30, 1890. 

XIII E. Where an appropriation was so depleted that there were 
not sufficient funds to enable the Government to pay for some very 
desirable work and it was proposed that in order to permit the work 
to proceed the Government should enter into a contract upon the 
condition that the contractor should wait for payment until an 
appropriation should be made, .and that he should have no claim 
against the Government for compensation unless an appropriation 
should be made. Held, that such a contract could not legally be 
entered into for the reason that it would violate the provisions of 
sections 3679 and 3732, R. S., and of the act of May 1, 1874 (23 Stat., 
17). The effect of incorporating such conditions in the contract 
would be no more than expressing what would be the legal effect of 
the contract, even without such conditions. Without authority from 

' By the act of June 12, 1906 (34 Stat., 255), "medical and hospital" supplies are 
also excepted. 

2 As t6 the reason of this statute, see the oipinion of Nelson, J., in the case of The 
Floyd Acceptances, 7 Wallace, 666, 685. 

^ To a similar effect, see subsequent opinions of the Attorney General in 15 Opins., 

* See XIII Comp. Dec, 480. 



346 CONTKACTS XIII E. 

Congress, no executive officer could bind the United States in the 
matter by contract or otherwise. The statutes in question were 
intended to prevent transactions such as that proposed, which, while 
not creating a legal claim against the United States, would involve it 
in an imperfect or moral obligation which would be urged as a ground 
for an appropriation to discharge the obligation.^ C. 15401, Mar. 10, 
1904. 

It was proposed that the Government should lease a pier for the 
period of the fiscal year, one of the covenants in the lease providing 
that the Government should rebuild the pier if it should be destroyed 
by certain means. Held, that in view of sections 3679 and 3732, R. S., 
a lease with such a covenant would not be legal, unless a sufficient 
sum from the appropriation applicable to liiring the property be 
reserved or set aside to rebuild the pier in case of its destruction, 
otherwise it could not be said there was an ' ' appropriation adequate to 
thefulfilhnent" of the contract.^ C. 12360, Apr. 7, 1902. So where 
certain landowners offered to donate their land to the United States 
for the extension of a levee, provided the United States would agree 
to pay all future cost of maintenance of the levee, Tield, that in view 
of section 3679 R. S., the Secretary of War would have no authority 
to bind the Government for the future maintenance of the levee. 
C. 5089, Nov. 4, 1898. And where, under an appropriation for the 
construction of a sewer, it was proposed to enter into a contract for 
the payment of damages indefinite in amount. Held, that as the 
amount of such damages would depend upon facts which could not be 
determined at the time of making the contract, it would be imprac- 
ticable to set aside a sufficient amount from the appropriation to meet 
the hability under the proposed contract, and therefore such a con- 
tract would be without authority of law. C. 27468, Nov. 23, 1910. 

In view of the provisions of sections 3679 and 3732, R. S., there can 
be neither a contract, nor an award or acceptance of a bid, until there 
shall be an adequate appropriation applicable to the subject, and, 
therefore, in advertising for bids in a case where an appropriation 
has not been made, it is proper, although not necessary, to insert a 
clause notifying bidders of that fact. R. 50, 338, June 14, 1886. 

By the river and harbor act of September 19, 1890, the Secretary 
of War was authorized to enter into contract for a certain improve- 
ment of the Delaware River, " the work to be paid for as appropriations 
may from time to time be made by law." A contract was entered into 
for the whole work at a cost largely in excess of the appropriation avail- 
able. It provided that when appropriations permitted, monthly pay- 
ments should be made, 10 per cent thereof to be "reserved," and that 
if payment be discontinued for a period of one year owing to lack of 
funds, the total amount reserved from previous payments should be 
paid to the contractor. On the question whether the amounts so 

' See XIV, Comp. Dec, 755. 

^ See XV Comp. Dec, 405, where it was held that the execution of a contract with 
a railroad company, which proposes to make the Government liable for any and all 
damages to the property of said railroad company arising from accident or injury 
thereto by reason of the use along its railway lines of velocipede cars by Government 
employees, is unauthorized and that under the act of Mar. 3, 1905 (33 Stat., 1257), 
amending section 3679 of the Revised Statutes, no officer of the Government has a right 
to make a contract on its behalf involving the payment of an indefinite and uncertain 
sum that may exceed the appropriation, and which is not capable of definite ascertain- 
ment by the terms of the contract, but is wholly dependent upon the happening of 
some contingency the consequence of which can not be defined by the contract. 



CONTRACTS XIV A. 847 

reserved could be used in paying for work not yet appropriated for, 
held, that to do so would involve a violation of the contract entered 
into, and would operate indirectly as a payment for work in advance 
of an appropriation therefor, C. 620, Nov. 15, 1894- 

XIV A. Previous to the act of July 17, 1862 (now sec. 3737, R. S.), 
Government contracts were legally assignable under limitations, and 
the act of February 26, 1853 (now sec. 3477, R. S.), prescribed the 
mode in which such assignments should be made. The act of July 17, 
1862 (now sec. 3737, R. S.), however, clearly inaugurated a new policy 
and one which looked to the repression of traffic or commerce in Gov- 
ernment contracts. R. 31, 436, June 8, 1871; 38, 13, May 17, 1875. 

XIV B. Under section 3737, R. S., the assignment of a contract does 
not render it absolutely void, but voidable at the option of the Gov- 
ernment.^ By accepting from the assignee labor or materials under 
the contract, or by permitting a part performance, it ratifies the 
assignment and payment under the contract should be made to the 
assignee.2 P. 16, 1, Apr. 2, 1887; C. 2933, Feb. 10, 1897; 16085, 
Mar. 24, 1904. So, where a contractor became financially unable to 
continue his contract and his surety for its own protection carried 
on the work and paid the debts, held, that upon proof of an assign- 
ment, either voluntaiy or involuntary, to it of aU the contractor's 
rights under the contract, that payments due the contractor might 
be paid such surety;^ and that upon completion of the work all 
retained percentages might be paid the surety, for by permitting the 
assignee to perform the work the assignee becomes entitled to pay- 

1 According to early authorities the assignment of a contract in violation of section 
3737 R. S. is absolutely null and void. McCord v. U. S., 9 Ct. Cls., 155; 10 Op. Atty. 
Gen., 523. But subsequently it was held, in 15 Op., 245, by the Attorney General that 
the statute is intended simply for the benefit and protection of the United States, 
which, therefore, is not compelled to avail itself of the right to annul the contract, but 
may recognize the same and accept and pay the assignee. "Were it to be held," 
observes the Attorney General, in 16 Op., 277, "that a transfer of an interest would 
absolutely avoid the contract, it would enable any party making a contract with the 
United States to avoid it by simply transferring an interest therein, which is a con- 
struction manifestly inadmissible." See also 18 Op. Atty. Gen., 88; Dulaney v. 
Scudder, 94 Fed. Rep., 6; Wheeler v. U. S., 5 Ct. Cls., 504; Federal Manufacturing and 
Printing Co. v. U. S. ; 41 id., 321; 2 Comp. Dec, 49. The practice of the War Depart- 
ment is in accordance with the later opmion of the Attorney General, but it is clear 
that an officer of the Army could not properly assume to treat an assignment of a con- 
tract as valid without the authority and direction of the Secretary of War. In 19 Op. 
Atty. Gen., 186, it is held that there is no authority given by the statute nor to be 
inferred from it, that any officer of the United States can in advance either approve or 
recognize any proposed assignment. Partnership arrangements and firrangements for 
financial assistance in connection with a contract will not ordinarily constitute an 
assignment. Hobba v. McLean, 117 U. S., 567; Coates v. U. S., 53 Fed. Rep., 989; 
Dulaney t'. Scudder, 94, id., 6. A contractor with the United States does not, by 
contracting with a third party to furnish material for the work, assign the contract 
within the meaning of sec. 3737 R. S. U. S. v. Farley, 91 Fed. Rep., 474. 

In Burck v. Taylor, 152 U. S., 634, the court said: "The express declaration that, so 
far as the United States are concerned, a transfer shall work an annulment of the con- 
tract, carries, by clear implication, the declaration that it shall have no such effect as 
between the contractor and his transferee. In other words, as to them, the transfer is 
like any other transfer of property, and controlled by the same rules. Its validity is 
only so far as the Government is concerned, and it alone can raise any question of the 
violation of the statute. The Government, in effect, by this section, said to every con- 
tractor, 'You may deal with your contract as you please, and as you may deal with 
any other property belonging to you, but so far as we are concerned you, and you only, 
will be recognized either in the execution of the contract or in the payment of the 
consideration. '" 

2 2 Comp. Dec, 49; Wheeler's Case, 5 Ct. Cls., 504; Heathfield's Case, 8 id., 215. 

3 IX Comp. Dec, 43; 19 Op. Atty. Gen., 240. 



348 CONTRACTS XIV C. 

ment therefor. Such an assignment would not be within the mis- 
chief intended to be remedied by section 3737, R. S. C. 11328, Oct. 
3, 1901. 

XIV C, The provision that the transfer of the contract or any inter- 
est therein "shall cause the annulment of the contract so far as the 
United States is concerned," being the words of section 3737, R. S., 
may properly be incorporated in a contract, but it would be better to 
substitute therefor the provision that "in case of such transfer the 
United States may refuse to carry out this contract either with the 
transferor or the transferee, ' ' as more clearly expressing what is intended 
by the statute as construed by the courts. 0. 2878, Jan. 19, 1897. 

XIV D. Sections 3477 and 3737, R. S., do not apply to involuntary 
assignments in bankruptcy, or to voluntary assignments for the benefit 
of creditors^ {C. 2828, Dec. 24, 1896; 13961, Jan. 13, 1903); or to 
assignments by order of a State court to a receiver appointed by the 
State court {6. 13961, Jan. 13, 1003), and where there has been an 
assignment for the benefit of creditors payments due or to become due 
on the contract should be made to the duly appointed assignee and 
could not legally be made to the assignors. Paragraph 1, Circular 13, 
A. G. O., 1895, which directs disbursing officers to refuse to pay the 
assignee of any claim, except as to assignments authorized by the 
Army Regulations, does not apply to an assignment for the benefit 
of creditors.2 C. 2052, Feh. 13, 1896. 

A receiver duly appointed for a company having a contract with 
the United States may be permitted to execute the contract, payments 
being made to the receiver on receipts signed by him. Such action 
would not amount to an assignment of a contract prohibited by sec- 
tion 3737, R. S. This section applies to voluntary transfers and not 
to such as are made under judicial proceedings. The receiver is an 
officer of the court which appointed him, acts under its orders, is 
appointed on behalf of all parties interested, and stands in the place 
of the company. And after his appointment the company can exer- 
cise no acts with reference to its property and contracts, such matters 
being in the hands of the receiver.^ 0. 7508, Jan. 6, 1900; 92^7, 
Nov. 8, 1900; 19612, Apr. 28, 1906. After the appointment of a 
receiver by a State court all payments due the contractor should be 
paid to the receiver. Payment to the contractor would not be a 
legal discharge of the debt.'' 0. 13961, Jan. 13, 1903. 

XIV E. Section 3737, R. S., does not apply to an assignment by 
operation of law. Thus, where a party died pending the execution of 
a contract by him with the United States, held that his executor or 
administrator could legally be permitted to complete the contract after 
filing a certificate from the proper court of his appointment, but for 
the executor or administrator to assign the contract to others would 
be a violation of section 3737, R. S.^ C. 5849, Feh. 20, 1899; 11168, 

» Erwin v. U. S., 97 U. S., 392. Goodman v. Niblack, 102 U. S., 556; II Comp. 
Dec, 49. Nat. Bank of Commerce v. Downie, 161 U. S., 839. 

2 This opinion was concurred in by the Comptroller of the Treasury under date of 
Feb. 20, 1896. 

3 Price V. Forest, 173 U. S., 410. 

* Borcherling v. U. S., 35 Ct. Cls., 311; People's Trust Co. v. U. S., 38 id., 359; U. S. 
V. Borcherling, 185 U. S., 223. 

^ II Comp. Dec, 514, but where the receiver of a company which was under 
contract with the Government transferred and assigned the contract by order of the 
court, such assignment is not a violation of sees. 3477 and 3737, R. S., X Comp. 
Dec, 159 and 168; Burke's Case, 13 Ct. Cls., 231; McKay v. U. S.; 27 id., 422. 



CONTRACTS XIV F. 349 

Aug. 31 , 1901 . So also, where one of two joint contractors (not consti- 
tuting a partnership) died before the completion of a Government con- 
tract, his executor or administrator, together with the other con- 
tractor, should complete the contract and sign all receipts for money 
paid, but if the contractors were partners the surviving partner 
should complete the contract and receipt for money paid. C. 10005, 
Mar. 18, 1901. However, if the contract called for the personal serv- 
ices of the contractor, as, for instance, his services as an artist, the 
contract terminated with his death, and can not be carried out by 
his executor or administrator.^ C. 9383, Dec. 4, 1900. 

XIV F. A receiver duly appointed for a company having a con- 
tract with the United States is both bound and entitled to perform 
the contract,^ and if he declines to do so, or fails in the performance 
of the contract to such an extent that the United States, under the 
terms of the contract, would be entitled to procure the work to be 
done elsewhere, the work may be procured elsewhere, and any loss 
to the United States resulting from such refusal or jfailure will be 
chargeable to the contractor or his receiver. C. 17207, Dec. 5, 190^. 

XIV G. There is a manifest distinction between the assignment 
of a Government contract and an assignment of a claim for money 
due under the contract. The former is prohibited by section 3737, 
R, S.; the latter is not prohibited and is lawful if properly made, 
but where a contractor not only assigns all his claims against the 
United States for work done and materials furnished under his con- 
tract with the Government, with power to collect and receive all 
moneys due thereunder, but in addition recites in the assignment 
that it is given "as a further continuing collateral security for all 
liabihties incurred or to be incurred," and in addition gives a mort- 
gage to the assignee on his property, held, it constitutes an assign- 
ment of the contract within the meaning of section 3737, R. S. An 
assignment, to have the effect of invalidating a contract, need not be 
express, nor need it be technical, formal, or written. It may be 
evidenced by the various facts or circumstances illustrating the rela- 
tions and intention of the parties.^ P. 62, 211, Nov. 3, 1893. 

XIV H. Wliere a formal written contract as required by section 
3744, R. S., had been made for furnisliing meals and lodgings to a 
recruiting party, and after part performance the contractor abandoned 

1 VII Comp. Dec, 402. 

2 In VIII Comp. Dec, 553, where a contractor, having failed to complete the work 
provided for in the contract with him, died, and the contract had not been annulled 
or rescinded, it was said: 

"In this state of the case the personal representative of Jacoby has exactly the same 
right to go ahead with the work under the terms of the contract ais Jacoby would have 
if he were living, and no more right, suffering the same penalties in case you have not 
exercised your authority to rescind and relet as would Jacoby himself if he were com- 
pleting the contract in person. 

"If the estate of Jacoby refuses to complete the work under the terms of the contract 
and you fail to exercise your right to rescind and relet the contract, then the sureties 
of Jacoby have exactly the same right to complete the work under the terms and 
limitations of the contract as had Jacoby if he had lived or as has his personal repre- 
sentative. 

******* 

"It is not intended herein to say that when a contractor defaults that his contract 
should not be rescinded and relet, but it is intended to be said that the sureties have a 

Eerfect right to prevent such default as would result in your right to rescind and relet, 
y doing the work themselves, thereby preventing such default." 
3See Francis's case, 11 Ct. Cls., 638; 15 Op. Atty, Gen., 235; 16 id., 280. 



350 CONTEACTS XIV I. 

tlie contract and his wife and family and thereupon liis wife claimed 
pay for meals furnished prior to his departure on the ground that the 
business had been carried on with her capital and labor and as her 
separate business, lield, that as the contract was made with her hus- 
band the money due for meals and lodgings furnished prior to his 
departure could be paid to him only, that to pay the wife would defeat 
the purposes of section 3737, R. S.^ ^ C. 27131, Aug. 4, 1910. 

XIV I. Where a bond had been given in accordance with the act of 
Congi-ess of August 13, 1894 (28 Stat., 278), to protect labor and 
material-men, and the contractor in applying to a surety company for 
a bond had agreed that in case of breach or default by the contractor 
of the provisions of his contract the surety should be subrogated to all 
the rights and property of the contractor, and that deferred payments 
and any moneys due the contractor should be credited to the surety, 
and the agreement was claimed to be an equitable assignment to the 
surety of all money due from the Government. Held, that under 
section 3477, R. S., the agreement was void as an assignment to the 
surety of any money due from the Government under the contract. 
C. 7311, Dec. 28, 1899; 7726, Feb. 28, 1900. 

XIV J. The Government will in general recognize assignments of 
claims to moneys in its hands due and payable to mdividuals, so far 
as to consent to pay over the amount to the assignee, where the 
assignment is made according to law, viz section 3477, R. S.^ But an 
assignment by a Government contractor to a bank of all amounts due 
or to become due to it by the United States Government under its 
contract is without effect as against the United States unless made 
in compHance with section 3477, R. S. G. 28261 , May 1 , 191 1 .^ Parties 

1 See X Comp. Dec, 201. 

2 In Buffalo Bayou R. Case, 16 Ct. Cls. 238, it was said: "This statute to prevent 
frauds upon the Treasury is of the nature of a statute of frauds. It was designed to 
absolve the Treasury from all complicity in or responsibility for the sale or assignment 
of claims until they had reached the point where in the form of drafts they would be 
merged in negotiable evidence of debt, and where, the amount being ascertained and 
fixed, the assignment or power of attorney could describe the chose assigned with 
the most accurate exactitude and certainty. At the same time the statute did not 
forbid the officers of the Treasury from recognizing or acting upon the instruments 
declared void, nor did it declare the sale and assignment of claims to be champertous 
or penal. In a word, it left these assignments and powers of attorney precisely where 
the statute of frauds left the agreements which it declares void — as instruments which 
can not be enforced at law, but which, when voluntarily given by the Government 
creditors, and voluntarily carried into effect by the defendant's oflicers, must be 
deemed by all courts to have expressed and executed the true intent of the parties." 
Section 3477, R. S., embraces every claim against the Government, however arising, 
of whatever nature and whenever and wherever presented; it applies as well to liqui- 
dated, certain, and undisputed demands as to those which are unliquidated, uncer- 
tain, or disputed. U. S. v. Gillis, 95 U. S. 407, Ball v. Halsell, 16 id., 72; I Comp. 
Dec, 276. It also embraces the pay of contract surgeons, Circular 41, A. G. O., Sept. 8, 
1902, but does not include Government agencies such as tailors, barbers, and dentists 
of the Navy, XII Comp. Dec, 423, and does not apply to checks that have been given 
by disbursing officers m payment of a claim. 22 Op. Atty. Gen., 637; Farmers Nat. 
Bank v. Robinson, 59 Kans., 777, does not forbid the transfer by an Army officer of 
his pay account when actually due. 15 Op. Atty. Gen., 271; XII Comp. Dec, 164; 
and the assignment may be revoked at any time prior to payment to assignee, XII 
Comp. Dec, 164. Sec. 3477, R. S., does not prohibit a disbursing officer from accept- 
ing the receipt of an agent or attorney of an individual, finn, or corporation, and 
receiving credit for a voucher so receipted, provided it appears thereon that the check 
issued in payment was made payable to the order of the individual, firm, or corpora- 
tion. II Comp. Dec, 295; 9 id., 210; par. 654, A. R., 1910. 

3 Henningsen v. U. S., Fidelity & Guaranty Co., 143 U. S., 810; Nat. Bank of Com- 
merce V. Downie, 161 U. S., 839"; Prairie State Bank v. U. S., 164 U. S., 227. 



CONTRACTS XV A 1. 351 

representing opposing interests can not, by presenting to a head of a 
department conflicting claims to such money, compel him to become 
a stakeholder for them or an arbitrator upon the merits of their 
demands. R. 19, 266, Dec. 11, 1866. Where a claim for pay for 
military ser^ace, not yet allowed, had been won from the o^vner in a 
bet on a horse race, and a power of attorney to collect the same had 
been executed by the owner to the claimant, held, that such power was, 
in eifect, an assignment of the claim, and as such was absolutely void, 
under section 3477, R. S. R. 52, 95, Mar. 17, 1887. So, also, an allot- 
ment by a Government employee of part of his pay in advance is 
void under section 3477, R. S. G. 17322, Apr. 3, 1906. So an 
assignment by a discharged general prisoner of the right to collect 
the donation of $5 given to him on his discharge would be void. 
G. 14494, Apr. 20, 1903. An informal assignment by a Government 
employee of his wages, not made as required by section 3477, R. S. 
is void.i G. 8411, June 15, 1900; 17322, Jan. 3, 1905; Sept. 29, 1908. 
But if an account assigned in violation of the statute is actually paid 
the payment will be a valid one.^ G. 9498, Dec. 27, 1900; 10576, 
June 5, 1901. So, where an oflScer signed a paper requesting the 
Secretaiy of War and the Paymaster General to retain out of his 
pay and pay to his wife a certain sum each month, held that such a 
paper constituted a violation of section 3477, R. S., but if the paper 
continued Unrevoked • and Undisputed and payments were made 
thereunder they would be binding on the officer. G. 10956, Aug. 2 
and Oct. 15, 1901. 

XV A 1 . An officer of the Army is under no statutory incapacity to 
be a party to a contract with the United States, or to become con- 
nected with such a contract by acquiring an interest therein if the 
same relates to matters separate from his office and is no way con- 
nected with the performance of his official duties.^ Held, that para- 
graph 746, Army Regulations, 1889 (603 of 1910), which provides 
that: "Officers or agents in the military service shall not purchase 
supplies for the Government from any other person in the mihtary 
service ; nor shall they contract with any such person to furnish sup- 
pUes or service to the Government, nor make any Government pur- 

' So, held, even where the assignment of wages is in the nature of a writ of attach- 
ment, III Comp. Dec, 222; 11 id., 790. See, also, XII Comp. Dec, 267 and 14 id., 
396, holding that under sec. 3620, R. S., checks can be drawn only in favor of persons 
to whom payment is made, and a power of attorney authorizing a disbursing officer 
to draw a check in favor of the attorney is without effect. 

^Assignments of claims not made as prescribed in this section are declared to be 
"absolutely null and void;" but this statute was intended to protect the Government 
and not the claimant, and to prevent frauds upon the Treasury, and, therefore, while 
the accounting officers will not approve powers of attorney not executed in accordance 
with the statute, if disbursing officers in fact make payments to persons holding unre- 
voked and undisputed powers of attorney, the accounting officers must allow the dis- 
bursing officers credit for such payments in the settlement of their accounts, and the 
original claimant can not recover a second time from the Government. I Comp. Dec, 
120, 142, 432, 453; 16 Op. Atty. Gen., 261; McKnight v. U. S., 98 U. S., 179; Bailey 
V. U. S., 109 id., 432; Buffalo Bayou R. Case, 16 Ct. Cls., 238; Lopez Case, 24 id., 84. 
This section, however, does not prohibit the passing of claims to heirs, devisees, 
assignees in bankruptcy, or even voluntary assignment for the benefit of creditors, 
because the passing or transfer of claims in such cases does not come within the evil at 
which the statute is aimed. Erwin v. U. S., 97 U. S., 392; Goodman v. Niblack, 102 
id., 556; Butler 1;. Gorley, 146 U. S., 303; II Comp. Dec, 50. See, also, 20 Op. Atty. 
Gen., 578. The section does not apply where land under lease to the Government is 
sold, thereby requiring the Government to pay rent to another landlord. Freedman's 
Saving Co. v. Shepherd, 127 U. S., 494. 

3 14 Op. Atty. Gen., 482. 



852 CONTRACTS XV A 2. 

chase or contract in which such person shall be admitted to share or 
receive benefit," was directory merely, and that a contract might 
still be legal and binding though entered into in contravention of its 
terms. P. J^3, 1^7, Oct. 6, 1890. 

As paragraph 589, Army Regulations, 1895 (603 of 1910), which 
forbids officers or agents in the military service from contracting with 
any other person in the military service, etc., is a prohibition pro- 
ceeding from the Secretary of War to the officer or agent in the mili- 
tary service, it may be waived by the Secretary in a given case. 
So held that whether it should be waived where the contract was to 
be between a quartermaster of a volunteer regiment and a firm whose 
business it had been and was to furnish quartermaster supplies and 
of which the quartermaster had been and was a member, was a ques- 
tion for the Secretary of War to decide on the facts of the particular 
case. C. 4218, June 1,1898; 22237, Oct. 22, 1907; 292^8, Nov. 18, 
1911 . So, where a soldier had been authorized to erect a house on a 
military reservation and was subsequently ordered to another station 
and desired to sell or lease the building to the Government, held the 
above regulation might be waived by the Secretary of War, and the 
building purchased or leased. C. 21670, June 13, 1907, and Aug. 
16, 1907. 

XV A 2. Paragraph 746, Army Regulations, 1889 (603 of 1910), 
which forbids officers or agents in the military service from contract- 
ing with any other person in the military service, does not apply to 
contracts on behalf of the United States which require for their 
validity the approval of the Secretary of War.^ P. 31, 106, Mar. 15, 
1889; C. 19856, June 5, 1906. On the question whether, in view of 
the above regulation, an Army quartermaster may enter mto a con- 
tract with a retired officer of the Army for the rent of rooms in a build- 
ing owned by the latter, held that under the construction put upon 
this regulation by the Supreme Court of the United States, the Sec- 
retary of War may authorize the contract in question to be entered 
into, in which event it becomes unnecessary to consider whether a 
retired officer is in fact "in the military service" within the meaning 
of the regulation cited. C. 2508, Aug. 4, 1896; 21670, Aug. 16, 1907. 
Similarly held with respect to a retired officer who as agent of a cor- 
poration desired to enter into a contract with the Government to fur- 
nish it mihtary suppfies. C. 4828, Aug. 23, 1898; 16166, Apr. 9 ,190^. 

XV A 3. Paragraph 1002, Army Regulations, 1863 (603 of 1910), 
which provides that ''no officer or agent in the military service shall 
purchase froni any other person in the mihtary service, or make any 
contract with any such person to furnish supphes or services, or make 
any purchase or contract in which such person shall be admitted to 

1 The paragraph of the regulations cited is substantially the same as par. 1002 of the 
Regulations of 1863; and with reference to the latter the Supreme Court held (U. S. v. 
Burns, 12 Wall., 251): "That regulation does not apply to contracts on behalf of the 
United States which require for their validity the approval of the Secretary of War. 
Though contracts of that character are usually negotiated by subordinate officers or 
agents of the Government, they are in fact and in law the acts of the Secretary whose 
sanction is essential to bind the United States. The Secretary, although the head 
of the War Department, is not in the military service in the sense of the regulation, 
but on the contrary is a civil officer with civil duties to perform, as much so as the 
head of any other of the Executive Departments. It would be carrying the regula- 
tion to an absurd extent to hold it was intended to preclude the War Department 
from availing itself l)y purchase or any other contract of any property which an officer 
in the military service might acquire if its possession or use were deemed important 
to the Government," 



CONTRACTS XV A 4. 353 

any share or part, or to any benefit to arise therefrom," prohibits 
purchases by officers of the Army "from any other person in the mih- 
tary service." Held, that this prohibition did not embrace civilians 
employed in the pubhc service under the War Department, or in 
connection with the military administration, and therefore did not pre- 
clude the making of a contract by an ordnance officer, as representing 
the United States, with a civil employee at an arsenal, for the use of 
an invention patented by the latter. R. SI, 320, Apr. 11, 1866; C. 
19856, June 5, 1906. So held that a commissary officer could enter 
into a contract with a quartermaster's employee at the post to supply 
the same post with potatoes. C. 29248, Nov. 18, 1911. But where 
the form of a proposed contract contained the stipulation that "No 
person belonging to or employed in the miUtary service of the United 
States is or shall be admitted to any share or part of this contract," 
held that the description "person * * * employed in the mili- 
tary service" is understood to mean all such clerks, mechanics, labor- 
ers, or other civilians as are legally employed by the military authori- 
ties in or in connection with military works, operations, or other 
authorized transactions, and that where the lowest bidder was a 
civihan laborer at the Springfield Armory, the contract should be 
made with the next lowest bidder, who was under no such inca- 
pacity. P. 48, 375, Aug. 6, 1891. 

XV A 4. Paragraph 589, Army Kegulations, 1895 (603 of 1910), pro- 
vides that no officer or agent in the mihtary service shall make any 
purchase or contract in which any other person in the military service 
shall be "admitted to an^^ share or part, or to any benefit to arise 
therefrom," Held that this prohibition does not embrace a contract 
with the wife of a soldier in a case where it clearly appeared that the 
wife had her own funds and carried on her business in her own name, 
and that the husband did not in any way share in the business. C. 
10752, June 26, 1901. 

XV A 5. Paragraph 593, Army Regulations, 1904 (603 of 1910), 
which forbids officers or agents in the mihtary service from contract- 
ing with any other person in the military service, etc., appHes to a con- 
tract between the United States and an officer or employee of the 
United States who contracts in his own name, but does not apply to 
a contract between the United States and an incorporated company 
in which an officer or employee of the United States holds stock. 
C. 18809, Nov. 6, 1905; 16166, Nov. 15, 1905. 

XV B. Under sections 3739-3742, R. S., it is illegal for an officer of 
the United States to contract for or purchase for the United States, 
any supphes from a Member or Delegate to Congress or from a firm 
or association, other than an incorporated companv, of which such 
a Member or Delegate is a member or in which he is pecuniarily 
interested.* R. 4^, ^44, June 27, 1879. But these sections do not 

Eroliibit the acceptance of a Member or Delegate as a surety on a 
ond given to secure a contract with the United States.^ R. 49, 377 , 

1 See 2 Op. Atty. Gen., 40; 4 id., 47; U. S. v. Dietrich, 126 Fed. Rep 671. That 
sec. 3739, R. S., does not affect contracts made with persons who have been simply 
elected Members of or Delegates to Congress, but have not actually become such by being 
sworn in, see opinion of the Attorney General in 15 Op., 280. But see sees. 114 and 115 
of the Federal Penal Code of Mar. 4, 1909 (35 Stat., 1109), which supersede sees. 3739 
and 3742, R. S., and broaden the former provision so as to apply to Members of Congress 
from the time of their election and before qualification. 

2 See 18 Op. Atty. Gen., 287. 

93673°— 17 23 



354 CONTEACTS XV C. 

Oct. 17, 1885. But as in case of a failure of the principal the surety 
may become subrogated to the rights of the principal and offer to 
carry out the contract, the acceptance of a Member of Congress as 
surety would be calculated to establish contractual relations between 
the United States and a Member of Congress, recommended that Mem- 
ber of Congress be not accepted as surety. 0. 14-923, July 6, 1903. 

XV C. There is no illegality or impropriety in a retired Army 
officer leasing a building owned by him to tne Post Office Department. 
C. 18010, May 15, 1905. 

XVI A. Section 3744, R. S., prescribes that ''it shall be the duty 
of the Secretary of War, of the Secretary of the Navy, and of the 
Secretary of the Interior to cause and require every contract made 
by them severally on behalf of the Government, or by their officers 
under them appointed to make such contracts, to be reduced to 
writing, and signed by the contracting parties with their names at 
the end thereof." Were it not for the provisions of this section the 
acceptance of a bid would, under the general law of contracts, bind 
the United States. But this section has been construed by the 
Supreme Court as being in the nature of a statute of frauds and 
mandatory in its requirements, and therefore as making it essential 
that a contract, to be legal and obligatory, shall be in writing and 
signed by the parties.^ The mere proposal of a bidder, accepted on 

'In Clark v. U. S. 95, U. S. 541, the court, in holding that the requirements of sec. 
3744 are mandatory, states: " It is contended on the part of the Government that this 
act is mandatory and binding both on the officers making contracts and on the parties 
contracting with them, whilst the claimant insists that it is merely directory to the 
officers of the Government and can not affect the validity of contracts actually made, 
though not in writing. The Court of Claims has heretofore held the act to be manda- 
tory and as requiring all contracts made with the departments named to be in con- 
formity with it. The arguments by which this view has been enforced by the court 
are of great weight and, in owe judgment, conclusive. The facility with which the 
Government may be pillaged by the presentm'fent of claims of the most extraordinary 
character, if allowed to be sustained by parol evidence, which can always be produced 
to any required extent, renders it highly desirable that all contracts which are made 
the basis of demands against the Government should be in writing. Perhaps the 
primary object of the statute was to impose a restraint upon the officers themselves 
and prevent them from making reckless engagements for the Government; but the 
considerations referred to make it manifest that there is no class of cases in which a 
statute for preventing frauds and perjuries is more needed than in this. And we think 
that the statute in question was intended to operate as such. It makes it unlawful 
for contracting officers to make contracts in any other way than by writing signed by 
the parties. This is equivalent to prohibiting any other mode of making contracts. 
Every man is supposed to know the law. A party who makes a contract with an 
officer without having it reduced to writing is knowingly accessory to a violation of 
duty on his part. Such a party aids in the violation of the law. We are of opinion, 
therefore, that the contract itself is affected and must conform to the requirements of 
the statute until it passes from the observation and control of the party who enters 
into it." In the above case the claimant agreed with the Government for the use of 
claimant's vessel and for the payment of the value ($60,000) of the vessel if she should 
be lost in the Government service. The agreement was not reduced to writing. While 
in the Government service she was lost, but no negligence was attributed to the 
Government. Held, the agreement not being in writing was void, and therefore the 
claimant could not recover the value of the vessel, but could recover on an implied 
contract to pay a reasonable sum for the actual use of the vessel, which would be only 
$1,200. See XII Comp. Dec, 79, a similar case. 

In South Boston Iron Co. v. V. S., 118 U. S., 37, the claimant offered to the Secretary 
of the Navy by letter to construct new boilers for certain vessels of the Navy. The 
offer was accepted by letter, and he was also thereby informed that the drawings and 
specifications would be furnished as soon as possible. A few days later he was notified 
to discontinue all work contracted for by him with the department. The claimant 
Bued to recover damages for nonperformance of the contract. Held, the letters did not 



CONTEACTS XVI A. 356 

the part of the Government, does not therefore operate as a contract, 
but IS simply a proceeding preliminary to a contract: nor does such 
an acceptance bind the United States or the bidder to enter into a 
contract. Either the bidder or the Government may legally refuse 
to carry out the bid as accepted, or if the bidder enters on the per- 
formance of the work before the signing of the contract, or enters 
on the performance of the work after an oral agreement to do the work, 
the bidder or the Government may at any time legally discontinue 

constitute a contract with the United States under sec. 3744, R. S.; that they were 
nothing more than preliminary memoranda made by the parties in preparing a con- 
tract for execution in the form required by law. See also International Contracting 
Co. V. Lamont, 2 Appeal Cases, D. C, 532, Salomon's Case, 19 Wall., 17; Henderson's 
Case, 4 Ct. Cls., 75; Lindsley v. U. S., 4 id., 359; Danolds v. U. S., 5 id., 70; Lender's 
Case, 7 id., 530; Mitchell v. U. S., 19 id., 39; Sawyer & Moody v. U. S., 40 id., 47; 
VI Comp. Dec, 880; IX id., 700; holding that a bid for the transportation of Gov- 
ernment property and the acceptance thereof by the Government do not constitute 
a valid contract within the meaning of sec. 3744, R. S.; XI Comp. Dec, 604; 
XIII id., 12. 

But where a contract, void because not in writing and signed as required by sec. 
3744, has been wholly or partially executed, the party so performing will be entitled 
to recover the fair value of the property or services furnished as upon an implied 
contract. Clark v. U. S., 95 U. S., 539; Salomon v. U. S., 19 Wall., 17. See also 
Danolds v. U. S., 5 Ct. Cls., 65; Thompson v. U. S., 9 id., 187; Dougherty v. U. S., 
18id., 496; Mitchell r. U. S., 19 id., 39; Steele V. U.S., 19 id., 181; Wilson t; U.S., 23 id., 
77; MoranBros.Co.i;. U. S.,39id.,486; III Comp. Dec, 365; IV id., 680; V id., 246^ 
588, 826; VI id., 553; VII id., 342, 366, 517; XIV id., 242. In XII Comp. Dec, 647, 
it was held that where the owner of a wharf refused to enter into a written contract 
for its lease, but the Government used it with the permission of the owner, the Gov- 
ernment is liable to the owner for the reasonable value of the use. In Wilson & Goss 
V. U. S., 23 Ct. Cls., 77, it was held that a parol agreement enlarging the quantity of 
work required by a written contract is not obligatory upon the Government where 
the contract is required by law to be in writing. See also Jones v. U. S., 11 Ct. Cls., 
733; but compensation for work actually done thereunder may be recovered on an 
implied contract. See also 22 Op. Atty. Gen., 104; IX Comp. Dec, 559. In the 
absence of other evidence the amount agreed upon may be assumed to be the fair 
value of the proioerty or services. Clark v. U. S., 95 U. S., 539; IV Comp. Dec, 680; 
VI id., 553, 951; VII id., 345; XIV id., 594. 

The principle that a recovery may be had for the fair value of the property fiu*- 
nished or services rendered has been modified by more recent decisions of the United 
States Supreme Court to the effect that after actual performance, on the strength of 
the agreement, recovery may be had for the amount agreed upon, notwithstanding 
the instrument itself was void. The leading case so holding is St. Louis Hay & Grain 
Go. V. U. S., 191 U. S., 163, where a bid was made to fiu-nish certain hay to the Gov- 
ernment and the bid was accepted; but the agreement was not reduced to writing, 
as required by sec 3744, R. S. The Government did not require the full amount 
contemplated and mentioned Avhen the Government advertised for bids. The Gov- 
ernment paid the claimant in full the price agreed upon by the bid and acceptance. 
The bidaer thereupon, treating the bid and acceptance as void because not reduced 
to writing, sued the Government for the market value of the hay (which was more 
than the price offered by the bidder and accepted and paid by the Government) 
less the amount already paid by the Government according to the terms of the bid 
and acceptance. The court denied the claim, holding that it could recover no more 
than the price agreed upon, stating: " On the facts stated it is evident that the claim- 
ant has no case. The invalidity of the contract is immaterial after it has been per- 
formed. When a lawful transfer of property is executed, it does not matter whether 
the terms of the execution were void or valid while executory, the transfer can not 
be revoked or the terms changed. A promise to make a gift does not bind, but a 
gift can not be taken back, and a transfer in pursuance of mutual promises is not 
made less effectual by those promises or by the fact that money was received in 
exchange. The contract may oe void as such, but it expresses the terms on which 
the parties, respectively, paid their money and delivered their goods." See to the 
same effect U. S. v. Andrews, 207 U. S., 229; XIV Comp. Dec, 594. On the authority 
of St. Louis Hay & Grain Co. v. \J: S., the comptroller, m XV Comp. Dec, 65, has held 
that when an informal contract by proposal of a contractor and acceptance thereof 



356 CONTRACTS XVI A. 

the further performance under the bid or oral agreement, the Govern- 
ment being liable for only such supplies as have been furnished or 
such services as have been rendered prior to the discontinuance of the 
work. P. 56, 87, 355, Oct. 10 and Nov. 18, 1892; 64, 379, Apr. 17, 
189A; 65, 378, July 7, 1894; G- ^H^, ^(^V ^, ^895; 8458, June 19, 
1900; 8842, Sept. 1, 1900; 12274, ^clv. 22, 1902; 12572, May 7, 1902; 
12827, Sept. 10, 1902; 16889, Sept. 15, 1904; 18823, Nov. 9, 1905; 
19525, Apr. 17, 1906; 26994, July 11, 1910. So, where a written 

by the Navy Department has been fully executed by both the parties thereto with- 
out default, with the exception that the Government has not paid the full contract 
price, the contractor is entitled to be paid the full contract price, although the price 
IS in excess of the current price at the time and place of delivery. 

Where a contractor died prior to the completion of certain work under a contract 
which was void because not in writing, and the work was subsequently completed 
by a subcontractor, payment of the reasonable value thereof should be made to the 
administrator of the estate of the decedent and the subcontractor must look to said 
estate for payment. X Comp. Dec, 353. 

Sec. 3744, R. S., applies to contracts made in an emergency without advertising as 
well as to others. Cobb v. U. S., 18 Ct. Cls., 514. 

In XV Comp. Dec, 89, it was held that when an informal contract by proposal of a 
contractor and acceptance thereof by the Commissioner of the General Land Office 
has been fully executed on the part of the contractor, and has been accepted by the 
Government, it becomes as binding as a formal contract, although not reduced to 
writing and signed by the contracting parties as required by sec. 3744 of the Revised 
Statutes, and that in such case the original proposals and the acceptance thereof 
should be filed with the auditor in accordance with sec. 18 of the act of July 31, 1894, 
in order to enable the auditor to intelligently audit the accounts by having the evi- 
dence before him. 

In Camp v. U. S., 113, U. S., 648, it was held that when a regulation, made by 
the head of an executive department in pursuance of law, empowers subordinates, 
of a class named, to contract on behalf of the United States as to a given subject 
matter; and further directs that "any contract made in pursuance of this regulation 
must be in writing," a verbal executory contract relating thereto is not binding upon 
the United States. 

While the provisions of sec. 3744, R. S., are mandatory in those cases where they 
apply, the following are exceptions to the rule that contracts under the War Depart- 
ment should be in writing: 

If there is an exigency or emergency requiring immediate delivery of property or 
immediate rendition of services a written contract is not necessary. IX Cornp. Dec, 
460; XV Comp. Dec, 65; 36 Ct. Cls., 105; 42 Ct. Cls., 351; par. 558, A. R., 1910. 
See also Ceballos v. U. S., 42 Ct. Cls., 318, as to emergency contracts in time of war. 

The time fixed in an existing written contract for the completion of the same may 
be orally waived, that is, extended indefinitely, and the written contract will con- 
tinue in force, with a reasonable time for performance. VIII Comp. Dec, 104. But 
if it is desired to extend the time to a specific date, sec. 3744, R. S., applies, 
and the extension should be accomplished by a formal written contract. VIII 
Comp. Dec, 104. 

A written contract is not necessary in expending the sum of $50,000,000 appro- 
priated in 1898 (30 Stat., 273) for national defense, which was "to be expended at 
the discretion of the President." IX Comp. Dec, 457. 

The act of Mar. 23, 1910 (36 Stat., 261), provides that "hereafter whenever contracts 
which are not to be performed within sixty days are made on behalf of the Gov- 
ernment by the Chief of Ordnance, or by officers under him authorized to make them, 
and are in excess of five hundred dollars in amount, such contracts shall be reduced 
to writing and signed by the contracting parties with their names at the end thereof. 
In all other cases contracts shall be prepared under such regulations as may be pre- 
scribed by the Chief of Ordnance." 

The act of June 25, 1910 (36 Stat., 676), provides that "the requirements of section 
thirty-seven hundred and forty-four of the Revised Statutes shall not apply to the 
lease of lands, or easements therein, or of buildings, rooms, wharves, or rights of wharf- 
age or dockage, or to the hire of vessels, boats, and other floating craft, for use in con- 
nection with river and harbor improvements, where the period of any such lease or 
hire is not to exceed three months." 

See contracts XVI B for an instance in which, under unusually worded instruc- 
tions to bidders, the Government would be liable for partial performance in a case 
where the Government declined to sign the contract. 



CONTRACTS XVI A. 357 

contract authorizing the United States to procure riprap stone from a 
certain part of the river front was extended by a written agreement 
signed only by the contractor, TieU, the written agreement of 
extension was not a contract and gave the United States no rights 
in the premises. C. 12083, Feb. 21 , 1902. So, where a manufacturing 
concern upon the request of the Chief of Ordnance enlarged its plant 
to enable it to fill anticipated large orders at the outbreak of the War 
with Spain, but no written contract for such anticipated orders was 
entered into, held, the United States was not bound to reimburse 
the company for money spent in enlarging its plant. C. 17302, Dec. 
21, 1904. So, where a bid was accepted by the Government, but the 
bidder refused to sign the form of contract submitted to liim, and 
thereupon the Government entered into a contract with the next 
lowest bidder, the bidder who had refused to sign the contract 
claimed damages by reason of the fact that he had already given 
orders for part of the supphes bid on, held, there was no legal claim 
for damages against the Government. C. 24879, May 3, 1909. So, 
held, that a lease for rooms to be binding must comply with the pro- 
visions of section 3744, R. S. C. 17098, Nov. 1, 1904; ^7826, Apr. 
13, 1906. So, where, on written proposal and acceptance a launch 
was hired for one month, and after three days' use the Government 
dechned to continue the hire, held, there being no written contract 
as required by section 3744, R. S., the Government was legally liable 
only for the three days' use of it. C. 21993, Aug. 29, 1907. So, in 
April, 1898, when extraordinary efforts were being made to mine a 
harbor for defense against possible attack, the local engineer officer 
ordered from an electric company by letter a large quantity of leaded 
cable wliich the company promised by letter to furnish and dehver 
at the place needed. No formal written contract was made. The 
cable had not arrived at the time it was needed and the officer there- 
upon purchased the amount he required from other parties. Sub- 
sequently the cable first ordered arrived, but too late to be used, and 
was returned, the Government paying freight charges both ways. 
Held, that the Government was under no legal obhgation to accept 
and pay for the cable, the agreement made not having been reduced 
to wTiting, etc., as required by section 3744, R. S. C. 6276, Nov. 11, 
1898. A contract for gun carriages provided that the Government 
might increase the nuniber 50 per cent, and that ' ' for such increased 
number as may be called for a necessary time allowance for deliver- 
ing will be made, as may be agreed upon." The Government gave 
written notice of an increase to be furnished "within such time as 
may be necessary to their manufacture," which was agreed to in 
writing by the contractor. Held, that, under section 3744, R. S., 
the correspondence does not constitute a binding contract, and that 
the furnishing of the increased number should be provided for by a 
supplemental contract. C. 11926, Jan. 18, 1902. Where bids were 
invited for supplying fresh meat for one year, to be furnished weekly 
and paid for monthly, and it was sought to avoid the use of a formal 
contract, held, that, as the agreement was not to be immediately 
executed, but would continue through the year, a formal contract as 
required by section 3744, R. S., should be entered into, for an oral 
agreement would not be binding on the parties. C. 2074, P"^^- ^^ 
and Mar. 6, 1896. Where a private steamer transporting Govern- 
ment property became disabled and the commanding officer of the 



358 CONTRACTS XVI A. 

troops orally agreed to pay another steamer $3,000 for salvage services 
in saving the Government property, lield, that in view of the provi- 
sions of section 3744, R. S., the oral stipulation would not be binding 
upon the United States, but as the claimant had fully rendered the 
services req^uired by the agreement, he should be paid the agreed 
amount which, under the circumstances of the case, was regarded as 
reasonable for salvage services, and as the claim arose out of the 
transportation of Government property, recommended that this sum 
be paid to the claimant from the fund "Transportation of the Army." 
C. 11126, Aug. 23, 1901. Where there was an oral agreement to 
furnish a certain number of mules to the Government and the Gov- 
ernment failed to promptly purchase the full number agreed upon, 
Tield, there was no claim against the Government for its failure. 
C. 5102, May 21, 1901. So, where a written offer to sell land 
adjoining a miUtary reservation was accepted in writing, but owing 
to exceptional conditions the purchase was not made, held, that 
in view of the pro\dsions of section 3744, R, S., the negotiations 
amounted to preliminary memoranda only and did not constitute 
a vahd contract binding on the Government. C. 12081, Oct. 1, 
1902, Apr. 6 and June 23, 1905, Mar. 27, 1907, and Jan. 23, 1908. So, 
where a civilian was employed as a clerk in the Phihppine Islands 
without a written contract but upon a certain verbal understanding 
that he was to be ordered to the United States for discharge, held, 
that as contract was not in WTiting and signed as required by section 
3744, R. S., the understanding was not binding upon the Govern- 
ment. C. 11713, Feb. 1, 1902. 

The owner of a steamship offered its vessel for charter at the rate 
of $50 per day, with a proviso that in a certain contingency the rate 
should be $60 per day. The chief quartermaster of the department 
forwarded the offer recommending approval. The chief quartermas- 
ter of the division recommended approval for $50 a day only, without 
the provision for an increase in any contingency. The division 
commander approved the offer for $50 per day straight. The owner 
made out a charter party for $50 per day, with the provision for an 
increase to $60 per day in the event of a contingency. Tliis was 
returned by the division commander inviting attention to the fact 
that the approval was for only $50 a day straight. Thereupon the 
owner signed the charter party for $50 a day straight, protesting at 
the same time against the reduced rate, stating that he did it only ' * to 
avoid any friction with the Quartermaster's Department." The prop- 
erly signed charter party for $50 a day straight was approved by the 
division commander. Subsequently the contingency mentioned by 
the. owner occurred, and the owner requested the increased rate. Held, 
that all the negotiations preliminary or prior to the actual signing 
of the charter party were oy reason of section 3744, R. S., only pre- 
liminary and did not bind the parties, and that the charter party first 
submitted by the owner not having been approved by the division 
commander was not binding on the parties. The fact that the con- 
sent of the owner to the terms insisted upon by the Government was 
a "grumbhng consent" made it none the less a real consent, and the 
signed and approved charter party was the only measure of the rights 
and liabilities of both parties. C. 18634, Oct. 2, 1905. 

Wliere a contract is not ambiguous or technically obscure, parol 
evidence is not admissible to establish a new term or add an under- 



CONTRACTS XVI B. 359 

standing at variance with its written stipulations. Thus where, prior 
to the execution of a contract, the officer acting for the United States 
advised the contractor that it would be necessary to deduct from the 
whole amount to be paid him certain sums which would be required 
to be disbursed by the Government for certain clerical work and the 
employment of certain assistants, but failed to insert in the contract 
any stipulation for such deduction — held that in view of the require- 
ments of section 3744, R. S., and also in view of the general legal 
principle that the written contract represented the consummation of 
all previous negotiations and the final act of the parties, the United 
States was estopped from setting up, by parol evidence, the existence 
of an understanding that such deduction should be made. R. 50, 
488, July 1, 1886. 

Owing to the fact that an improper plane had been taken for 
several years as the average flood tide in the matter of measuring the 
depth to be maintained at the South Pass, La., by the James B. Eades 
estate, certain moneys to which the estate was lawfully entitled had 
been withheld from it. The executors of the estate, while claiming 
the right to be paid all amounts so withheld, proposed to waive their 
right to all that accrued prior to January 1, 1895, if the Secretaiy of 
War would authorize payment of the amounts withheld since that date. 
The Secretaiy of War accepted the proposal. Held, that the letters 
of the executors proposing the compromise and expressing satis- 
faction with the Secretary ol War's acceptance did not constitute a suf- 
ficient waiver of all claims against the United States for the years prior 
to January 1, 1895. The Tetters and indorsements relating to the 
waiver constitute under section 3744, R. S., only preHminary nego- 
tiations. To legally bind both parties to the agreement reached, it 
should be reduced to writing and signed as required by that statute. 
C. 2116, Mar. 11, 1896. 

XVI B. The circular of instructions to bidders for certain fire 
apparatus stated that as early dehvery was essential bidders "will 
state in their proposals the number of days from date of award that 
dehveiy will be made," and the accepted bidder stated that he would 
begin work "at once after receipt of award," and that the several 
items would be defivered within a certain number of days "from 
acceptance of bid." Held that -if the Government should refuse to 
approve the contract, a part performance before the refusal, by 
reason of the bidder commencing the manufacture of the apparatus 
immediately on receiving notice of the award, would give the bidder 
a claim to compensation so far as the proposed contract had been 
executed, but no further. C. 26752,^ May 23, 1910. 

XVI C. Where a contractor for river-improvement work failed to 
sign a written contract as required by section 3744, R. S., but per- 
formed a portion of the desired work, held that the contractor was 
entitled to pay for the work actually performed, but that the United 
States could not deduct from tliis any loss which it may have sustained 
by reason of his failure to complete the work.^ C. 8842, Sept. 1, 1900; 
18823, Nov. 9, 1905. 

XVI D. Certain transportation companies signed an "agreement" 
purporting to bind them to accept shipments of passengers and freight 
at certain rates filed with the Interstate Commerce Commission, the 
agreement purporting to be effective during the calendar year of 1911 

' IX Comp. Dec, 664. 



360 CONTRACTS XVI E. 

and "thereafter from year to year unless the carrier files notice of 
withdrawal with the Quartermaster General of the Army at least sixty 
days prior to the beginning of any calendar year." Held that as 
there was no consideration for the agreement and it was not signed 
by any officer of the United States it is not a binding contract under 
section 3744, R. S., but simply a continuing proposal, good until 
withdrawn by the parties signing it. C. 27803, Feb. 8,1911. 

XVI E. The Umted States Soldiers' Home entered into a contract 
for certain material. A tliird party, whose name did not appear in 
the contract, notified the home that he was interested in the con- 
tract wliich stood in the name of the contractor, and notified the 
home not to pay any money to the contractor on the contract during 
the pendency of a certain suit. Held that if the contract were one 
governed by the provisions of section 3744, R. S., the notice from the 
third party should be disregarded, as the Government in such cases 
deals only with the person named in the contract; ^ but as the home 
was under the control of a board of commissioners the contract was 
not one "under the Secretary of War" witliin the meaning of section 
3744, R. S., and, therefore, was not required by law to be executed 
in the manner prescribed by that section. The contracts for the 
home in practice are executed in the same manner as those controlled 
by section 3744, R. S., but as this practice is not based on a legal 
requirement, such contracts would be governed by the general law of 
agency, which law permits an undisclosed principal to come forward 
and claim the benefit of a contract made by an agent in his own name. 
C. 19648, May 7, 1906. 

XVI F. Paragraph 549, Army Regulations (558 of 1910), provides 
three methods of purchasing supplies, etc., to wit: (1) ''By contract 
'reduced to writing and signed by the contracting parties with their 
names at the end thereof "; (2) "by written proposal and written 
acceptance"; and (3) "by oral agreement." This paragraph further 
provides that "when delivery or performance does not immediately 
follow an award or bargain, the first method will be used," i. e., "by 
contract reduced to writing," etc.; and that "when delivery or per- 
formance immediately follows an award or bargain the second method 
may be resorted to." The first method constitutes a "contract" 
under section 3744, R. S., but the second (proposal and acceptance) 
does not. The regulation permits the second method to be used only 
when the material is to be jdeHvered at the time the bargain is made, 
because in that case it is not necessary to bind anyone, but requires 
the first method to be used in cases where the delivery is to be made 
in the future, because in these cases it is necessary to bind the j)arties, 
and this can not be done except by "contract reduced to writing," 
etc.2 0. 6275, Nov. 11, 1898. 

XVI G. The act of June 12, 1906 (34 Stat., 258), provided that 
"hereafter the purchase of supplies and the procurement of services 
for all branches of the Army service may be made in open market, in 
the manner common among business men, when the aggregate of the 

» SeeXComp. Dec, 201. 

' The present regulations (par. 558 of 1910) authorize the use of the third method 
(oral a^eement) under certain circumstances indicated in par. 559, A. R. 1910, 
"if delivery or performance immediately follows the agreement." The reason for 
allowing the use of the third method only in case delivery or performance imme- 
diately follows the agreement is the same as indicated above for the second method. 
See, also, XII Comp. Dec, 507. 



CONTRACTS XVI H. 361 

amount required does not exceed $500," etc. Held that tliis act dis- 
penses with the necessity of a formal written contract as provided by 
section 3744, i' . 3. C. 32214, May 5, 1908. 

XVI H. Wlier j a lease was made for one year with a provision for 
renewal from year to year for several years, at the option of the United 
States, it was held that in view of section 3744, R. S., written notice 
of the renewal with an indorsement thereon of acceptance by the lessor 
would not be a binding contract, as it would not be signed by both 
parties "with their names at the end thereof"; but advised that a 
brief contract referring to the original lease in a way to identify it and 
providing for the renewal for the succeeding fiscal year, and signed by 
the proper officer on behalf of the United States and the lessor with 
their names at the end thereof, would comply with the requirements 
of the statute. Such a brief contract could be made at the beginning 
of each fiscal year during the term named in the original lease. C. 
7214, Oct. 27, 1899. 

Where it was desired to enter into a supplemental agreement, and 
the contracting officer wrote to the contractor stating the terms and 
conditions which he desired to have incorporated into the supple- 
mental agreement, and the contractor returned the letter, stating at 
the end of the same, below the signature of the contracting officer, 
that he (the contractor) accepted the "above modifications" and 
signed the paper himself, and below his signature appeared the signed 
assent of the surety on the bond, lield that the paper constituted a 
written supplemental contract within the meamng of section 3744, 
R. S. a 29314, Dec. 19,1911. 

XVII. Section 3745, R. S., provides that every contract shall, 
before being filed in the Returns Office of the Department of the 
Interior, have attached to it an affidavit that the same was fairly 
made, and further requires that the affidavit shall be taken "before 
some magistrate having authority to administer oaths." The act of 
July 27, 1892 (27 Stat., 278), provides that "judge advocates of depart- 
ments and of courts-martial and the trial officers of summary courts 
are hereby authorized to administer oaths for the purposes of the ad- 
ministration of military justice and for other purposes of military 
administration." Held, that the oath required by section 3745, 
R. S., comes within the language "other purposes of military admin- 
istration " and the act of July 27, 1892, having been passed suDsequent 
to the Revised Statutes modifies section 3745, R. S. C. 3671, Nov. 20, 
1897; 3746, Dec. SO, 1897. Held, also, that the administering of oaths 
to sureties on a Government contractor's bond is within the language 
"other purposes of mifitary administration." C. 3768, Jan. 5, 1898. 

XVIII. In settling with a contractor under a duly executed con- 
tract, there may be set off against the amount due to him an amount 
due from him as damages under the terms of another contract wliich 
he has failed to perform, provided the amount due from him is a 
fiquidated amount. But where the amount due from the contractor 
is not fiquidated, the Government has no strict legal right to insist 
that this unfiquidated amount, fixed by the Government itself as 
properly due from the contractor, shall be set off against the amount 
due to him. But although the strict legal right to set off an unliqui- 
dated claim due to the Government against the amount due from the 
Government does not exist in favor of the Government, still the Gov- 



362 CONTRACTS XVIII. 

ernment has an equitable right to withhold in its discretion money 
due from it until the unliquidated claim can be adjusted in the Court 
of Claims, which has jurisdiction of all set-offs, counterclaims, claims 
for damages, whether liquidated or unliquidated, or other demands 
whatsoever, on the part or the Government against any person making 
claim against tho Government in that court. R. 32, 257, Jan. 25, 
1872; a 6841, Aug, 4, 1890; 8973, Nov. 23, 1900; 19004, Jan. 5, 1906. 
So, where the Navy Department had supplied r. construction company 
with fresh water to the amount of $431.86 and was unable to collect 
this amount, and the same company had a contract with the War 
l3epartment, held that the abovo amount could be withheld from 
money due or to become due the company under its contract with the 
War Department, and this whether the amount was liquidated or 
unhquidated. C. 68 4I, Aug. 4, 1899. So, also, where a dredging 
company failed to perform its contract with the Navy Department 
and the amount of the loss to the Navy Departnient resulting there- 
from was uncertain, Tield, that an amount sufficient to cover the 
Government's loss caused by the failure to carry out the Navy con- 
tract might be withheld from money due the company under another 
contract with the War Department.^ C. 8973, Sept. 18, 1900, and 
Nov. 23, 1900. So, also, where a prima facie claim for loss to the 
United States by the sinking of a steamboat on the Missouri River, 
existed against a contractor for transportation, and the Government 
was indebted to liim on other contracts, advised that the sums due 
him be withheld until a balance should be mutually agreed upon, or 
till the accounts should be judicially adjusted upon his resorting to 
proceedings in the Court of Claims. P. 36, 398, Nov. 12, 1889. But 
where a steamer was chartered to transport troops, and the ship having 
met with an accident the troops on board were required to work at 
bailing and firing the ship, as the result of which their clothing and 
shoes were ruined, and it was sought to withhold from the money due 
for the charter of the ship the value of the clothing and the shoes 

1 See VII Comp. Dec. , 213, containing the comptroller's decision in the same case, in 
which it is said: 

"As this Navy contract is yet unexecuted, the total amount of actual damage which 
has been and may be sustained is yet unliquidated and unascertained; therefore 
said damage is not a proper subject for a set-off against a definite debt owed by the 
United States to the contractors under an independent contract. However, if at the 
present time a definite ascertained amount of damage has already accrued, I think 
said amount would be a proper subject of set-off and should be retained, especially as 
it is understood that the War Department contract is completely executed and danger 
of complications with the sureties on that contract can not occur. 

" So far this subject has been considered as to the legal right of a set-off at the present 
time. The equitable right to retain money due the contractors as security against prob- 
able loss under the Navy contract is a different matter, especially in view of their unrea- 
sonable delay in completing that work, and also the intimation from the Navy Depart- 
ment of either the insolvency of the principal and sureties or insufficiency of the bond. 
Why the NaAry Department has permitted 10 months to elapse since the default with- 
out taking steps to annul the contract and have the work done by other parties does 
not appear. The equitable right to retain the money now due the contractors under the 
War Department contract to meet probable loss under the Navy contract under the 
circumstances is more a matter of public policy than of law. As a matter of commcxi 
justice the dredging company have little right to expect the United States to pay 
them money now due and take the chances of recovering damages from them under 
the Navy contract on which they have been long in flagrant default. 

"In specific answer to your questions I will say that unless there has now a definite 
amount of damages accrued under the Navy contract, which is the proper subject of 
a set-off as indicated alxwe, I think the matter of withholding money due the com- 
pany rests within your discretion, having due regard for the public interests." 



CONTRACTS XIX A. 363 

ruined and an additional sum as wages for the labor rendered by the 
men, held, that as the claims were private claims in favor or the 
soldiers, the United States would not be justified in withholding 
payments due the owners of the ship to compensate them. C. 9037, 
Oct.4,J900. 

A bidder refused to enter into a contract after the acceptance of 
his bid, which was accompanied by a guaranty that if the bid was 
accepted the contract would be entered into. The Government was 
indebted to the bidder on another contract. Held that the accept- 
ance of the bid did not constitute a contract under section 3744, R. S., 
and created no debt or obligation from the bidder, that the Govern- 
ment had an action on the guaranty for its loss occasioned by the 
refusal to enter into a contract (the amount of the loss being the differ- 
ence between the bid in question and the amount for which a con- 
tract might afterwards be entered into with another person), but as 
the bidder was not a party to the guaranty there was no right of ac- 
tion against the bidder; and as the Government had no right of action 
against the bidder it could not withhold the payments on the other 
contract to compensate the Government for the refusal of the bidder 
to execute the proposed contract. C. 19523, Apr. 17, 1906. Where 
a contract for tne construction of a steamship provided for the pay- 
ment of Uquidated damages and through mistake the constructing 
officer on settlement with the contractor failed to deduct the liqui- 
dated damages that had accrued, held that there could be withheld 
from the contractor money due him on another contract to reimburse 
the Government for the erroneous overpayment. C. 231 Al, June S, 
1908. 

XJX A. Where a contract provides for a forfeiture for delay in 
completing a contract, but does not state whether the sums to be for- 
feited are to be regarded as penalties or as Uquidated damages, and 
where the actual damages are capable of ascertainment, the forfeiture 
should be treated as a penalty from which to indemnify the United 
States for the actual damages, if any, and the excess over such actual 
damages should be remitted.* C. 6407, May 9, 1899; 6684, July 6, 
1899. 

XIX B. A contractor agreed to furnish certain supplies, the con- 
tract j)roviding that if the supplies were delivered witnin the stipu- 
lated time the contractor should receive a certain price, but that for a 
later dehvery the price should be determined by deducting from the 
first-named price one-half of 1 per cent for each day of delay. Held, 
that the provision for a reduction in price was a penalty for delayed 
dehvery, and that the contractor was entitled to receive the full price 
less actual damages only. C. 19725, May 15, 1906. 

XIX C. A provision in a contract that on default of the contractor 
all sums due or to become due and all percentages retained shall be 
forfeited to the United States is a provision for a penalty, and the 
contractor on default is entitled to payment of the moneys withheld 
over and above any actual damage sustained by the United States 
on account of the default.^ C. 5082, Aug. 15, 1900: 7484, Jan. 8, 
1901. 

XIX D. Where a contract provides for the doing of two or more 
things, as, for instance, for tne erection of two or more houses or 

•IVComp. Dec, 217. 

2 See VII Comp. Dec, 95; 15 Op. Atty. Gen., 420; Kennedy v. U. S., 24 Ct. Cls., 122. 



364 CONTRACTS XIX E. 

dredging in two or more places, or for the furnishing of different arti- 
cles, the completion and use of no one of them being connected with 
or dependent upon the completion of either of the others, and pro- 
vides that the entire contract shall be completed by a stipulated 
date, and the entire contract is not so completed but some of the 
things to be done are entirely completed by that date, a provision 
in the contract for the liquidated damages for delay will not be 
enforced, but will be construed as penalty.^ So, lield, where a contract 
is made for the construction of two new water tanks and the altera- 
tion of an old one for a lump sum. C. 244^0, Feb. 5, 1909. So, where 
a contract was made for the erection of four buildings. C. 23801, 
Sept. 1, 1908. 

XIX E. The Government advertised for bids for the sale of certain 
stores. Bidders were required to accompany their proposals with 
current funds or a certified check for 20 per cent of the amount of the 
bid. The highest bidder deposited a certified check, but failed to 
carry out the purchase. Therefore, the contract officer declared the 
check forfeited. Held, that the deposit of 20 per cent was a penalty 
for failure to comply with the terms of the sale, and that it should 
be returned, less any actual damages sustained by reason of the failure 
to carry out the purchase. C. 11420, Oct. 22, 1901. 

XIX F. Where in a Government contract it is provided that a cer- 
tain sum shall be paid "as liquidated damages " for each day's delay, 
and such sum appears to be grossly in excess of the damages which 
are likely to accrue for the failure to complete the contract within 
the stipulated time, thereby violating the principle that liquidated 
damages are to constitute a just compensation for the loss or injury 
actually sustained and are to place the Government in as good a 
position as it would have been in had the contract not been broken, 
the provision for liquidated damages will be construed to be a provi- 
sion for a penalty which will be enforced to the extent of the actual 
damages only. So, Jield, where the liquidated damages for one year 
would be from 19 to 27 per cent of the contract price of the buildings 
to be constructed under several contracts. C. 15977, Feb. 29, 1904- 
So, where the liquidated damages for one year would amount to 40 
per cent of the contract price of the building to be constructed under 
the contract. C. 144^9, Apr. 9, 1903. So, where the liquidated 
damages in one year would amount to 77 per cent of the contract 
price of the building to be constructed. C. 14172, Feb. 19, 1903. So, 
where the liquidated damages in one year would amount to more than 
twice the contract price of the building. C. 11599, Nov. 19, 1911. 
So, where the liquidated damages in one year would amount to 
nearly three times the contract price for the building to be con- 
structed. C. 13328, Sept. 20, 1902. But where certain machines 
were required for use on the Panama Canal, and at the time of the 
making of the contract there was supposed to be urgent need of them, 
and the liquidated damages would amount in one year to about 36 
per cent of the contract price of the machines, held, that in view of the 
circumstances under which the contract was entered into the pro- 
vision for liquidated damages should not be construed to be one for a 
penalty. C. 25176, June 12, 1909. But where the liquidated dam- 
ages in one year would amount to only 1 1 per cent of the contract price 
for installing an electric-fighting system at Governors Island, N. Y., 

» See VIII Comp. Dec, 487; 11 id., 513; 14 id., 617. 



CON TE ACTS XIX G. 365 

Tield, that in making the contract the principle of compensation 
had not been disregarded, and the provision should not be held to be 
one for a penalty. C. 16167, Apr. 13, 1904. And held, that it could 
not be said the principle of compensation had been ignored where the 
liquidated damages in one year would amount to about 20 per cent 
of the contract price for installing an electric-hghting system at Fort 
Wmiam McKinley, P. I. C. 24076, Nov. 16, 1908. 

XIX G. Where a supplemental contract stipulated that ' ' any addi- 
tional expense or other loss incurred by the United States because of 
the failure of the contractor to make deliveries as originaJly fixed, 
shall be charged to the contractor and may be deducted from any 
money due or that may become due under said contract." Held, that 
the salary and expenses of an inspector for the period of the exten- 
sion are in no sense penalties imposed on the contractor, but are 
actual damages sustained by the United States and must be withheld 
in settlement with the contractor. C. 22270, Oct. 28, 1907. 

XIX H. A contract for liquidated damages provided for an addi- 
tional allowance of time ' * on account of unusual freshets, * * * 
State quarantine restrictions, or other unforeseeable cause of delay 
arising through no fault of the contractor, and which actually pre- 
vented such contractor from commencing or completing the work or 
dehvering the material within the period required by the contract." 
Held, that the tardy delivery of material by a subcontractor was not 
an "unforeseeable cause of delay arising through no fault of the con- 
tractor." C. 27659, Oct. 31, 1911. ^ 

XIX I. In a contract for supplying potatoes and onions it was 
provided, "In case of failure of the party of the second part to 
dehver the potatoes and onions as herem stipulated, the depot 
coromissaiy, Manila, P. I., is authorized to supply, by open purchase 
or otherwise, any deficiency resulting from said failure, and the said 
party of the second part shall be charged with any excess of cost 
over that of furnishing at contract prices." The contractor failed 
during one month to deUver the required quantity of potatoes, and 
as the United States was unable to procure potatoes in tlie local 
market it purchased what was considered an equivalent of canned 
tomatoes, canned sweet potatoes, and canned cabbage, and charged 
against the contractor the excess of cost for these articles. Held 
that the words "any deficiency resulting from said failure" refers 
to any deficiency in potatoes and onions and under the above pro- 
vision only potatoes and onions could be supplied, but Jield further 
that under the general law of damages the parties to the contract 
should be considered to have contemplated that in case of breach 
the United States would have to purchase hke articles elsewhere, 
and in case of inability to do so would have to purchase some other 
articles of another kind as a substitute for them, and the contractor 
should be held responsible for the increased cost of such purchases, 
and therefore that the charge against the contractor of the excess of 
cost for these articles was legal. C. 18160, Sept. 27, 1905, and 
Dec. 28, 1906. 

XIX I 1. Where contractors for installing plumbing, heating, 
and fighting were unable to proceed with their contracts by reason 
of the failure of another contractor A to construct the building, and 
it was necessary to extend the time for completing the plumbing, 
heating, and fighting at an increased price for the work, held the 



366 CONTKACTS XIX J. 

additional cost to the United States should be charged against the 
contractor A and his surety. C. 20508, Oct. 13, 1906. 

XIX J. Under a contract for the construction of two river steamers 
the work was so delayed that at the time the contracts should have 
been completed one vessel was only about 20 per cent constructed 
and the other only about 12 per cent constructed. No payment had 
been made to the company, and there had been no acceptance of 
the partially constructed vessels. Held that while the United 
States might under the terms of the contract take charge of the ves- 
sels and complete them at the expense of the company, it was not 
required to do so; and, further, that the provision for liquidated 
damages, while it contemplated the continuance of the contract for 
a reasonable time after the date fixed for its complete performance, 
could not properly be construed to provide for an unreasonable 
extension of the contract. Therefore recomTnended that the con- 
tract be treated as abandoned ^ by the contractor, and that the 
contractor and its surety be notified that they will be held liable 
for actual damages which may be shown to result from the breach, 
and that fresh contracts be made after the usual advertisement. 
C. 15267, Sept. 23, 1903. 

XIX K. A contract was let for sinking a well at a stipulated price 
per foot, payments to be made as the work progressed, reserving 20 
per cent to secure the completion of the contract. The work was 
taken out of the contractor's hands on account of the very unsatis- 
factory progress made. Subsequently the Government removed the 
contractor's plant and adopted a different system of water supply. 
Held that the retained percentages were to secure the Government 
against loss, and as the work had been abandoned by the Govern- 
ment and a new water-supply system adopted it therefore had become 
impossible to ascertain whether the Government had been damaged, 
and the retained percentages for work already done should be paid 
to the contractor. C. lJfi29, Jan. 22, 1903. 

XIX L. A contract for furnishing hay to be shipped to Manila 
provided that all hay delivered under the contract should be com- 
pressed to a density of 72 cubic feet per ton. The contractor failed 
to compress the hay to the density required by the contract, in 
consequence of whicli the Government was required to pay excess 
freight to Manila. Held, that notwithstanding the absence of an 
express stipulation in the contract penalizing the contractor for 
delivering nay not sufficiently compressed, the contractor would 
be legally responsible for actual damages which might result from 
his failure to strictly comply with his contract obligations, and that 
the damages so suffered could properly be deducted on final settle- 
ment from moneys due the contractor under his contract. C. 22666, 
Jan. 27, 1908. 

XIX M. A contract for electrical installation in a building being 
erected by another contractor provided for the completion of the 
electrical installation by March 6, 1910, but by reason of the failure 
to complete the building the work of electrical installation could not 
be commenced until April 9, 1910. After that date the work was 

' "If there be no performance within the time, the contract may be rescinded. If 
there be substantial performance, with only minor deficiencies, it may not be. But 
a defective, negligent, and worthless performance is the same as no performance at 
all." Miller v. Philipps, 31 Pa. St. (7 Casey), 218; Lauman v. Young, id., 306. 



CONTRACTS XIX N. 367 

prosecuted and completed with reasonable promptness. The con- 
tract for electrical installation did not provide for liquidated damages 
nor a penalty, but provided that the excess of cost resulting from a 
failure to complete the work according to the terms of the contract 
should be charged to the contractor. Held, that actual damages 
could not be charged for the period that the contractor for electrical 
installation was delayed in commencing the work, that is, up to April 
9, 1910, and that after that date he was entitled to a reasonable time 
for completing the installation.^ C. 27978, Mar. 15, 1911. 

XIX N. Bidders for the construction of certain dredges for the use 
of the Cahfornia D6bris Commission were required to deposit a cer- 
tified check, which check was to be returned to the bidder upon his 
returning to the Government certain plans for the construction of 
dredges, which were turned over to each bidder. Held, that if the 
checks were not intended as liquidated damages nor to reimburse 
the United States for the cost of the plans, the contracting officer, in 
case of failure to return the plans, could legally deduct only such 
sum as would reasonably reimburse the United States for the value 
of the plans and other damages. C. 29^02, Jan. 27, 1912. 

XX A. A Government contractor for the construction of certain 
buddings failed financially, and certain unpaid material men claiming 
to be subcontractors took steps to obtain a lien on the land of the 
United States on wliich the buildings stood. Held, that as sub- 
contractors their claim against the United States would be by virtue 
of having succeeded to the rights of the original contractor by 
being in a sense substituted for mm in the contract. But this would 
be in contravention of sec. 3737, Rev. Stat., which prohibits the 
transfer of a contract or order or any interest therein, since it would 
amount to a transfer to the subcontractors of an interest in the 
contract. This section was intended for the protection of the United 
States, and to secure it from the necessity of having to decide con- 
troverted questions of liens and assignments, and must be held to 
apply to indirect as well as direct transfers. To recognize a lien on 
tne part of a subcontractor would be to sanction an indirect transfer 
of an interest in a contract. P. 29, 210, Jan. 8, 1889; 1^8, 341, Aug. 
1, 1891; a 2457, July 20,1896. 

A subcontractor for building materials furnished a Government 
contractor at Fort Riley, Kans., could not enforce a lien against the 
United States under the statutes of that State. ^ This, for the 
reasons among others: 1st. That the State law requires that the lien 
be prosecuted in the State district court, a tribunal in which the 
United States is not suable. Thus the remedy can not be pursued 
against the United States as owner of the buildings. 2d. That public 

golicy forbids the obstruction of the legal operations of the United 
tates hj State legislation or process. P. 29, 210, Jan. 8, 1889. 
There is no law of the United States which authorizes an inter- 
ference, by means of a material-man's lien, with an instrumentality 
of government in the District of Columbia. Soldiers' homes are 
instrumentalities of government.^ Held, therefore, that a mechanic's 
(material-man's) lien filed against the amusement hall at the Soldiers' 

' See XV Comp. Dec., 362, for a corresponding decision where the contract contained 
a provision for liquidated damages. 

2 See 23 Op. Atty. Gen. 176 to same effect. 

3 In re Kelly, 71 Fed. Rep., 545. 



368 CONTRACTS XX B. 

Home, Washington, D. C, could not be recognized as a ground for 
witiiliolding payments due the contractor who nad built it. C. 2457 , 
July 20, 1896. 

XX B. A contract stipulated — according to a usual form — that the 
contractor should be responsible for and pay all liabilities incurred 
for labor or materials. After its completion certain subcontractors 
who had furnished materials to the contractor applied to the Secre- 
tary of War for his consent to their suing the sureties on the con- 
tractor's bond, in the name of the United States, for their own use, 
for the sums claimed by them. Held that no such consent could 
legally be given, for the following reasons: (1) The contract had 
been duly performed. (2) If not performed, to yield the claim 
would be to part with a right of action, property of the United States, 
without the authority of Congress. (3) The contract did not author- 
ize or provide for such a proceeding. The covenant referred to is 
inserted mainly to further a prompt performance and incidentally 
to protect the united States from being recurred to by the creditors 
of contractors. The failure to observe the covenant would doubtless 
give the United States a remedy in damages against the contractor 
and his sureties in case appreciable damages were suffered. But 
such damages, if any, would be wholly independent of the liabilities 
which the contractor might be under to his creditors and would not 
be measured by their amount. Thus held that the suit proposed 
could be instituted only by the authority of legislation. * P. 56, 265, 
Nov. 2, 1892. 

XX C 1. The act of August 13, 1894 (28 Stat. 278), required that 
in the "construction of any public building or the prosecution and 
completion of any public work" bond should be given conditioned 
for the payment or persons supplying "labor and material," and 
gave to such persons the right, ir not promptly paid, to recover on 
such bond. Held that in practice the act nas been understood to 
apply to the removal of wrecks from navigable waters or the dredging 
of channels therein,^ and as the act is a remedial one it should be 
liberally construed, and a bond exacted unless it is clear the contract 
does not involve the "prosecution or completion of any public work" 
within the meanmg of the statute. C. 2^519, Feb. 19, 1909. Held, 
also, that the act covered repairs upon an Army transport wherever 
the repairs are made, the reason bemg that the title continues in the 
Government and therefore no lien on it can be acquired. C. 8430, 
June 2, 1900; 8^29, June 15, 1900; 9356, Nov. 27, 1900; 19164, Feb- 
9, 1906. But the act does not cover work on a statue which, until 
the time of its acceptance, remains the property of the contractor 
and is subject to any remedy provided by law for the protection of 
persons supplying labor and material.^ C. 25761, Nov. 12, 1909, and 
Dec. 22 1909. 

XX C 2. As the act of August 13, 1894 (28 Stat. 278), does not 
expressly provide that it shall govern contracts made abroad, and in 
the light of the principle that the laws of any State, can not, by any 

1 Such authority has been given, since the date of this opinion, in the act of Aug. 
13, 1894 (28 Stat. 278), amended by the act of Feb. 24, 1905 (33 Stat. 811). 

2 See Ellis i;. U. S. 206, U. S.,246, where the phrase "any of the public works" in 
the Eight-Hour Law was held by a divided court not to include dredging a channel 
in Boston Harbor. 

^ See 23 Op. Atty. Gen., 174, to the effect that the act does not refer to contracts for 
the construction of a naval vessel, where the whole title remains in the contractor 
until its completion and acceptance by the Government. See also 26 Op. Atty. 
Gen., 30. See also 218 U. S., 452; 219 U. S., 24. 



CONTRACTS XX C 2. 369 

inherent authority, operate beyond the hmits of that State, it is 
beheved the statute does not apply to a contract made and to be per- 
formed in a foreign country. In the absence of a stipulation to the con- 
trary such contract is to oe understood as made with reference to the 
laws of such foreign State and as governed thereby. Held, also, that if 
the laws of the foreign State give a hen upon a vessel so constructed in 
a foreign country, unless payment is made to labor and material-men, 
a claim might be made against the United States on the acquisition 
of the vessel subject to such Hen. C. 19164, F^^- H, 1906. 

XX C 3. Under the act of August 13, 1894 (28 Stat. 278), a 
certified check could not be received in heu of the bond for the pay- 
ment of labor and material-men. 0. 24519, Feb. 20, 1909. 

XX C 4. The act of August 13, 1894 (28 Stat. 278), rec^uu-es that 
a certified copy of the contractor's bond shall be furnished upon 
application accompanied by an afiidavit. RM, that an affidavit 
"upon information and belief" by the attorney of a material-man, or 
by an assignee of a person who furnished labor, is not a sufficient 
compliance with the act, the affidavit should be of the party furnish- 
ing the labor or material or at least of some one who can speak from 
his own knowledge, but as the act does not restrict the authority of 
the Secretary of War as to furnishing a copy on less evidence than is 
specified in the act, there is no legal o Dj ection to his doing so. C. 8996, 
Sept. 24, 1900; 13560, Oct. SO, 1902; 14029, Aug. 12, 1904. 

XX C 5. Where a bond has been given under the act of August 13, 
1894 (28 Stat. 278), as amended bv the act of February 24, 1905 
(33 Stat. 811), and it is clear that the contract has been completely 
performed so that there will be no suit on the bond by the United 
States, a copy of the contract and bond should be furnished upon 
proper apphcation, without waiting for the expiration of the period 
of six months from the completion and final settlement of the contract.* 
Q. 19264, Mar. 29, 1909. So, also, they should be furnished notwith- 
standing a receiver had been appointed for the contractor, and all 
creditors had been directed by the court to present their claims to the 
receiver, and the apphcant for the bond had failed to present his 
claim. G. 19264, ^P^- 12, 1909. If, however, suit has been brought 
by the Government, parties furnishing labor or material may inter- 
vene in such suit but should not be furnished a copy of the contract 
and bond. G. 19264, June 28, 1909. 

XX C 6. The new obligation^ of the surety under the act of August 
13, 1894 (28 Stat. 278), does not create an additional obUgation on 
the part of the United States in the nature of an equitable lien or 
other right against the United States. The United States has no 
right to withhold any funds due a contractor for the purpose of 
indemnifying a surety for moneys paid out by him to material men 
and laborers.^ For the United States to withhold, except for its own 

' Complete performance and final settlement under act Feb. 24, 1905, means final 
settlement by auditor. Stitzer v. V. S., 182 Fed., 513. 

2 "The bond which is provided for by the act was intended to perforra a double 
function: In the first place to secure to the Government, as before, the faithful per- 
formance of all obligations which a contractor might assume toward it; and in the 
second place, to protect third persons from whom the contractor obtained materials 
or labor." U. S. v. National Surety Co., 92 Fed. Rep., 549; U. S. v. Rundle, 100 
Fed. Rep., 400. 

8 See III Comp. Dec, 708; XV id., 711; XVI id., 426. See also Central Law 
Journal, 367, as to meaning of " final settlement," etc. See also Richards Brick Co. 
V. Rothwell, 18 D. C. Appeals, 516; Sanborn v. Maxwell, 18 D. C. Appeals, 245. 

93673°— 17 24 



370 CONTRACTS XX C 7. 

protection, payments due a contractor in order to pay therewith 
either Habihties on the part of the contractor or to indemnify his 
surety would be an assumption by the United States to insure the 
very payments which are intended to be secured by the provisions of 
the contract and the bond, and would cause the United States through 
the disbursing officers to adjudicate the matters of fact and law 
arising between contractors atid their creditors. 0. 7311, Nov. 21, 
1899; 15003, July 29, 1903; 20410, Sept. 27, 1907; 23265, July 20, 
1909; 28079, Apr. 4, 1911; 20423, New. 4, 1911. So, where the 
surety, claiming that it was the intention of the contractor to decamp 
from the United States after receiving his monej and to defraud the 
labor and material-men, had obtained an injunction from a State court 
prohibiting the contractor from receiving the money due him from 
the United States, Jield, the United States had no right to withhold 
at the request of the surety on the contractor's bond money due the 
contractor. C. 20021, July 10, 1906. 

XX C 7. A contract was modified by supplemental agreement 
without the consent of the surety on the contractor's bond. Held, 
that under the act of August 13, 1894 (28 Stat. 278), a contractor's 
bond may be considered as in effect two obligations, one to the 
United States to secure the due performance of the contract, and the 
other to the United States, but on behalf of labor and material-men, 
to secure their payment, and that the obligation for the benefit of 
the labor and material-men was not released by the action of the 
contractor and the United States in modifying the contract without 
the surety's consent.^ C. 17474, Feb. 3, 1905. 

XX C 8. Where the United States contracted with the board of 
water commissioners of a city for the construction of a water main 
to supply water to a Government post, held, that it was doubtful 
whether a contract with such an instrumentality of a municipality 
was within the true intent of the act of August 13, 1894 (28 Stat. 
278), and recommended that no bond be exacted for the protection 
of persons supplying labor and materials. C. 25610, Sept. 24, 1909. 

XX C 9. A contract was entered into conditioned as required by 
the act of August 13, 1894 (28 Stat. 278), and the principal and surety 
having failed to pay a subcontractor money due him the subcon- 
tractor requested the War Department to strike the surety company 
from the list of companies acceptable to the War Department with 
a view to compelling it to settle its alleged obligation to the subcon- 
tractor. Held that such action on the part of the War Department 
was outside of its duty Under the act in question. C. 10553, June 4, 
1901. 

XX C 10. Where a Government contractor went into bankruptcy 
the purchaser under a bankrupt sale of the contract rights of the con- 
tractor may be recognized and permitted to carry out the Govern- 
ment contract. In such a case a bond given by the original contractor 
conditioned for the faithful performance of tne work by the original 
contractor wiU continue in force, and the sureties thereon wifl be 
liable for any damages suffered by the Government by reason of the 
failure of the original contractor to fully perform the contract. But 

iSee Conn. v. State, 125 Ind., 514; 46 Nebr., 644; 41 Nebr., 655; 40 Minn., 27; 
U. S. V. Rundle, 100 Fed. Rep., 400; U. S. v. National Surety Co., 92 id., 549; U. S. v. 
American Bonding Co., 89 id., 921; U. S. Fidelity, etc., Co., v. Golden Pressed Brick 
Co., 191 U. S., 416. See 111 Fed., 474, as to whether bond covers plant. 



CONTRACTS XX C 11. 371 

in such a case a bond given by the original contractor to protect labor 
and material men under the act of August 13, 1894 (28 Stat. 278), 
would not continue in force as such a bond is Hmited by the terms to 
labor and material supphed to the original contractor. The pur- 
chaser of the original contractor's contract rights should furnish a 
new bond to secure labor and material-men.* G. 23265, Oct. 30, 1908. 

XX C 11. Where a contractor defaulted and a supplemental 
agreement was entered into by which the original contract was termi- 
nated, and the surety of the contractor undertook the work in its 
own name, held that such surety should give bond to protect labor 
and material-men as required by the act of August 13, 1894 (38 Stat. 
278). G. 18079, Oct. 1, 1906. 

XX C 12. The act of August 13, 1894 (28 Stat. 278), it is believed 
protects persons furnishing labor or materials to subconti^actors as 
well as to the original contractor, but whether it does or not is a 
proper question for the courts to determine. Advised, therefore, that 
a party who had furnished material to a subcontractor, be given a 
certified copy of the contract and bond upon filing the affidavit 
required by the act.^ G. 1908, Jan. 4, 1896. 

XX C 13. A party entered into a formal contract with the United 
States for certain work. He submitted two bonds, but both were 
rejected because not properly executed. In the meantime he com- 

Eleted the work to the satisfaction of the Government, but owing to 
is failure to furnish a bond as required by the act of August 13, 1894 
(28 Stat. 278), for the protection of persons supplying labor and 
materials, no payments had been made under the contract. Held, 
that until such bond was filed no payment should be made ; and that 
this rule would apply to the assignee of the contractor if one had been 
appointed. C. 4082, May 3, 1898. 

XX G 14. The certified copy of the contract and bond to be fur- 
nished under the act of August 13, 1894 (28 Stat. 278), should, in 
accordance with section 882, R. S., be authenticated under the seal 
of the War Department in order that such copy may be in proper 
form for use as evidence. C. 1743, Sept. 24, 1'895. 

XX C 15. A duly certified copy of the contract and bond relating 
to material-men having been furnished under the act of August 13, 
1894 (28 Stat. 278), the party furnished with a copy may institute 
suit as provided therein, and it is not necessary for him first to obtain 
the permission of the Secretary of War. C. 2319, May 25, 1896. 

XXI A. Where a contract for the delivery of lumber provided that 
in case of failure to prosecute faithfully and diligently the delivery in 
accordance with the specifications and requirements of the contract, 
then the contracting officer should have power, with the sanction of 

* But see Mullin v. U. S., 109 Fed. Rep., 817, that "where a contractor and obhgor 
on a bond given under the act of Aug. 13, 1894, gave up the work, and with the con- 
sent of all concerned an indemnitor of the surety to the bond took up the completion 
of the work for the contractor, imder the contract with the Government, and where a 
company kept on and furnished materials and labor to those taking up such contracts, 
under their contract with the original contractor with the Government, such furnish- 
ing of materials and labor is covered by the bond of the contractor and such company 
comes within the description of 'all persons supplying him labor and materials in the 
prosecution of the work. ' " 

^ See U. S. V. American Surety Co., 200 U. S., 197, to the effect that labor and mate- 
rials furnished to a subcontractor are within the obligation of the bond. 



372 CONTRACTS XXI B. 

the Chief of Engineers, to annul the contract by; giving notice in 
writing to that effect to the contractor; and provided further, that 
upon the giving of such notice all money or reserved percentages due 
or to become due to the contractor should become forfeited to the 
United States, and that the United States should have authority to 
provide the lumber by open purchase or contract. Held that the 
mere failure to deliver the lumber within the time named in the con- 
tract did not operate as a forfeiture of the retained percentages, but 
that there must be some positive action on the part of the contracting 
officer indicating an intention to annul, and this intention should be 
communicated to the contractor/ P. 34, 229, Aug. 2, 1889. 

XXI B. A breach of some term of the contract, as, in a case of a 
contract for supplies for the Army, a failure to deliver some of the 
articles at the agreed time, will not ordinarily, in the absence of an 
express covenant to that effect, authorize the Secretary of War to 
declare the contract annulled, but will give the United States only a 
right of action for damages. P. 29, 324, Jan. 16, 1889; 34, 261, 
Aug. 5, 1889. 

XXI C. A contract was regularly annulled in accordance with its 
terms. Held that the action of annulment was final and that such 
action could not be rescinded so as to revive the contract.^ C. 7931, 
Apr. 7, 1900. 

XXI D. The contract for a river improvement provided for its 
annulment in case of the default of the contractor and for its comple- 
tion by the Government, "the Government to take possession of and 
retain all materials, tools, buildings, tramways, cars, etc., or any part 
or parts of the same prepared for use or in use in the prosecution of 
the work, together with any or all leases, rights of way, or quarry 
privileges, under purchase and at a valuation to be determined by 
the engineer officer in charge." The contractor having defaulted 
and the United States having taken possession under the above pro- 
vision, held that the Government took possession by way of purchase, 
and that for the purpose of giving the defaulting contractor and its 
surety the proper debit and credit m final settlement, the plant should 
be revalued, the United States to receive credit for any depreciation 
in the value of the plant resulting from its use in the prosecution of 
the work, and that as there was nothing in the contract requiring the 
plant to be sold for what it would bring upon the completion of the 
particular contract, there would be no legal objection to using the 
plant on other works of improvement, upon giving proper credit to 
the appropriation from which it was purchased. 0. 27890, Mar. 6, 
1911. 

XXI E. A Government contract provided that if the contractor 
should "fail to prosecute faithfully and diligently the work in accord- 
ance with the specffications and requirements of this contract," the 
contract might be annulled ^ by the Government, and further provided 
for liquidated damages, held that the mere failure of the contractor 
to complete the work within the stipulated time would not authorize 

» See Kennedy v. United States, 24 Ct. Cls., 122. 

2IVComp. Dec, 679. 

2 See United States v. O'Brien, 220 U. S., 321, construing language similar to that 
used in the above contract, and further holding that the word "annulled " as used in 
the contract was incorrectly used, the word being used in the sense of "refusing to 
perform further," and not m the sense of rescinding Of avoiding. See also United 
States V. McMuUen, 222 U. S., 460, 



CONTRACTS XXII A. 373 

the Government to declare the contract to "have expired by limita- 
tion," nor would it authorize the annulment of the contract, but that 
to justify an annulment there should be a substantial failure on the 
part of the contractor ' ' to prosecute faithfully and dihgently the work 
m accordance with the specifications and requirements." C. 9201, 
Nov. 1, 1900. 

XXII A. An unreasonable delay to commence the delivery under 
a contract may indicate an abandonment on the part of the contractor 
which will justify the Government in treating the contract as relin- 
quished and will release the Government from the contract. P. 29, 
324, Jan. 16, 1889; 84, 261, Aug. 5, 1889. ^ 

XXII B. Where a contractor for furnishing certain articles to the 
Government did not make satisfactory progress in the work and was 
frequently urged to furnish at least a part of the articles to be supplied, 
but failed to supply the articles or to give any satisfactory informa- 
tion concerning the probable date of furnishing them, and moved 
away from its place of business without giving any new address, held 
that the facts mdicated a repudiation of the contract, and the con- 
tracting officer was justified in taking steps prior to the arrival of the 
date when the contract should have been completed, to supply the 
deficiency according to the terms of the contract. 0. 24639, Mar. 
27, 1909. 

XXIII A. Where it was proposed that a clause be inserted in Gov- 
ernment contracts which would prohibit the employment on Govern- 
ment work of any but citizens or those who had declared tlieir inten- 
tion to become citizens, held, that there was no law which authorized 
the insertion of such a provision in Government contracts and that 
in the absence of such legislation the Secretary of War was without 
authority to require it. C. 2087, Feb. 29, 1896; 15451, July 27,^ 1905. 
In the absence of a statute restricting the purchase of supplies in- 
tended for use in the military service to articles of domestic produc- 
tion (C. 16057, Mar. 21, 1904), or restricting the purchase to articles 
produced by American labor only {C. 18209, June 27, 1905), there is 
no authority to restrict the same by executive regulation.^ 

XXIII B. In the absence of any statutory regulation of the sub- 
ject, held that the Secretary of War is not empowered to exercise con- 
trol over the labor employed by the contractors for the work on the 
jetties at Galveston, Tex., or to prevent their availing themselves 
of the labor of convicts authorized by the laws of Texas to be hired 
out to contractors. The only statute of the United States relating 
to the use of such labor— that of February 23, 1887 (24 Stats. 411)— 
merely makes it a criminal offense to hire out criminals incarcerated 
for offenses against the United States, prescribing a penalty. But 
even this statute the Secretary of War has no authority to enforce, 
but the same is to be executed in the same manner as any other crim- 
inal statute of the United States. P. 48, 402, Aug. 7, 1891; C. 
3542, Sept. 24, 1897. 

' Sec. 3716, R. S., provides that "the Quartermaster's Department of the Army, in 
obtaining supplies for the military service, shall state in all advertisements for bids 
for contracts that a preference shall be given to articles of domestic production and 
manufacture," etc. The act of Mar. 3, 1875 (18 Stat., 455), provided that "In all 
contracts for material for any public improvement, the Secretary of War shall give 
preference to American material; and all labor tiiereon shall be performed within the 
jurisdiction of the United States." 



374 CONTRACTS XXIII C. 

XXIII C. There is no statute requiring or justifying the annul- 
ment of a contract with the United States on the ground that Italian 
labor was being employed in its execution. C. JfB52, July 23, 1898. 

XXIII D. An Executive order of May 18, 1905, published in Gen- 
eral Order 78, War Department, May 31, 1905, provided that "All 
contracts which shall hereafter be entered into by officers or agents 
of the United States involving the employment of labor in the States 
composing the Union, or the Territories of the United States contigu- 
ous thereto, shall, unless otherwise provided by law, contain a stipu- 
lation forbidding, in the performance of such contracts, the employ- 
ment of persons undergoing sentences of imprisonment at hard labor 
which have been imposed by courts of the several States, Territories, 
or municipalities having criminal jurisdiction." Held, that as the 
order restricts the freedom of contracts, it should be strictly con- 
strued, and that in a case where a contract was entered into for the 
erection of a building, the above Executive order did not apply to 
bricks made by convict labor and procured by the contractor in the 
open market. C. 18831, Nov. 9, 1905. Where a contract was made 
to furnish "all labor, plant, and appliances necessary and incident 
to the delivery, loaded on board of railroad cars at Vidalia, La., 
* * * of 7,000 tons of rock," held that under the Executive order 
of May 18, 1905, quoted above, if it was contemplated that the con- 
tractor should quarry and deliver the stone, the contract involved the 
"employment of labor," both as respects the quarrying and the 
delivery of the stone. C. 20668, Nov. 24, 1906. Also, where a con- 
tract was to furnish all materials and labor necessary to launder 
certain articles, held, that the contract involved the "employment 
of labor." G. 18102, June 7, 1905. And, also, where a contract was 
for tlie manufacture of an article according to a particular specifica- 
tion and the matter was treated by the Government as a purchase of 
the article itself rather than as a contract for work or the employ- 
ment of labor, held, the Executive order of May 18, 1905, did not 
apply. C. 18102, June 7, 1905. Also, where it was desired to work 
a thousand convicts from Bilibid prison in the construction of fortifi- 
cations on Corregidor Island, held, that the above Executive order 
would prevent a contract from being entered into with the Philippine 
government to obtain the services of its prisoners at a cost per man 
per day equal to their keep, but that if the Philippine government 
was willing to employ its prisoners in the construction of United 
States fortifications, as the United States benefited by their employ- 
ment, it might lawfully charge the cost of their support and sub- 
sistence against the appropriation for the construction of the defen- 
sive works on Corregidor Island. O. 24573, Mar. 2, 1909. 

XXIII E. The law does not prescribe that citizens or any other 
particular class of persons shall be the only competent bidders for 
Government contracts or that aliens shall not be competent to bid. 
P. 49, 134, Sept. 9, 1891. 

XXIII F. A contract prohibited the employment by the contractor 
of convict labor in the execution of the contract, and provided fur- 
ther that the contractor should not "permit such employment by any 
person furnishing labor or material to said contractor in the fulfillment 
of this contract." Held that if the contractor procured his coal from 
one who bought it from the State of Temiessee, which uses convict 



CONTRACTS XXIII G. 375 

labor in mining its coal, the contractor would not be violating his 
contract. C. 23652, July 27, 1908. 

XXIII G. Section 2 of the act of March 3, 1875 (18 Stat. 455), pro- 
vides that "in all contracts for material for any public improvement 
the Secretary of War shall give preference to American material ; and 
all labor thereon shall be performed within the jurisdiction of the 
United States." Held that the requirement of the above statute is 
not an absolute one, but leaves a discretion in the Secretary of War to 
authorize the procuring elsewhere of supplies where the conditions 
are such as to justify it, and that where a suboffice of the officer in 
charge of certain work is located in Canada and it is more convenient 
to purchase in Canada minor and emergency articles, held that such 
purchases might be made. C. 21^.261^, Dec. 29, 1908. 

XXIII H. The fortification appropriation act of March 4, 1911 
(36 Stat. 1343), provided that "all the material purchased under the 
provisions of this act shall be of American manufacture, except in cases 
when, in the judgment of the Secretary of War, it is to the manifest 
interest of the United States to make purchases in limited quantities 
abroad, which material shall be admitted free of duty." Held that in 
the exercise of the discretion vested by the above statute the Secretary 
could issue a general authorization under proper conditions as to the 
admission of material. C. 29307, Dec. 14,1911. 

XXIV. A dredging contract provided that the approximate c[uan- 
tities specified in the contract were subject to a possible variation of 
10 per cent above or below the figures stated. After more than 
three-fourths of the work was completed the contractor requested to 
be advised as to the approximate quantity of material to be removed 
under the contract. He was notified that the approximate quantities 
specified in the contract would be reduced 10 per cent. This decision 
was made in view of the state of the appropriation, but as additional 
funds subsequently became available the United States sought to 
change its decision and require the maximum quantity of material to 
be removed. Held that the United States having elected to require 
the minimum quantity only was bound by such election and could not 
subsequently elect to require the maximum dredging. C. 21308, 
Mar. 28, 1907. So also, where a contract for supplying dark-blue 
cloth was subject to an increase of 20 to 50 per cent if desired by the 
United States, and the United States notified the contractor that the 
quantity was increased 20 per cent, but did not reserve the right to 
make a further increase, and the contractor in response to his request 
was advised that no further increase was contemplated. Held that 
the United States having exercised its option to increase the quantity 
hj 20 per cent could not again increase the quantity, as the contract 
did not contemplate the exercise of more than one option. C. 24676, 
Mar. 22, 1909. 

Wliere a contract for the delivery of oats during the fiscal year pro- 
vided that it might " at the option of the United States be mcreased 
not exceeding 20 per cent or diminished not exceeding 20 per cent 
thereof at any time during the continuance of the contract," and after 
the deUvery of the quantity originally bid for the chief quartermaster 
of the department paid the contractor in fuU, including retained per- 
centages, marking the final voucher " contract completed," and there- 
after, 18 days before the expiration of the fiscal year the contractor 



376 CONTRACTS XXIV. 

was called on for the additional 20 per cent, lield that this action of the 
chief quartermaster in so paying the contractor and marking the final 
voucher did not constitute a technical "release" from the contract, 
for there would be no consideration for such a release, and without 
a consideration no agent of the United States can surrender the con- 
tract rights. But if m consequence of the action of the chief quarter- 
master the contractor failed to lay in supplies to meet the calls of the 
United States and would now have to procure the supplies at an 
advanced figure, or has been otherwise placed at a disadvantage 
thereby, the United States would be estopped from calling on him for 
the additional 20 per cent. G. 12974, J^ty 15, 1902. 

A contract for woolen blankets provided that the number to be 
supplied might be increased 50 per cent if desired by the United 
States, and also provided for partial payments based on supplies de- 
livered and accepted, "reservmg 10 per cent from each payment until 
final settlement, on completion of the contract or otherwise." The 
United States gave notice that a 50 per cent increase was required. 
Thereupon the contractor demanded that he be paid the retained 
percentages, claiming that the 50 per cent increase constituted a sep- 
arate contract. Held that the words "or otherwise" refer to a final 
settlement based on a termination of the contract otherwise than by 
completion of deliveries thereunder and do not authorize the United 
States to pay the retained percentages prior to a final settlement. 
Held, further, that the contract would not be finally settled until the 
50 per cent increase had been suppKed.^ (7. 22^20, Nov. 27, 1907. 

A contract for the delivery of oats provided that the Government 
should have the option to increase or decrease the quantity at any 
time during the continuance of the contract. The Government called 
for an additional quantity of oats, not for the purpose of supplying the 
current needs of the Government, but "as a distinct saving to the 
Government," which saving would result from the fact that the prices 
were lower than could be obtained at a subsequent stage of the same 
contract. Held that the order for additional oats was lawful, but by 
the authority of the opinion of the Attorney General in 28 Op., 121, 
the Secretary of War in the exercise of his discretion could properly 
direct that the order for the additional quantity be canceled although 
such cancellation would cause financial loss to the Government. 
a 29107, Nov. 1, 1911. 

A contract for supplying dark blue cloth expired February 21, 1909. 
The contract provided that the amount called for would be subject to 
an increase oi from 20 to 50 per cent in quantity if desired by the 
United States "during the continuance of this contract." Held that 
the contractor could not be required subsequent to February 21, 1909, 
to furnish an increased quantity. O. 24676, Mar. 22, 1909; 29107, 
Oct. 12, 1911. 

A contract provided that "the quantity of each article specified 
shall be subject to not to exceed 50 per cent increase if desired by the 
United States during the continuance of this contract," but no provi- 
sion was made as to the time within which the additional quantity if 
ordered should be delivered. Held, that the contractor would have a 
reasonable time within which to make the deliveries. C. 25825, Nov. 
22, 1909. 

•See XII Comp. Dec, 409. 



CONTRACTS XXV. 377 

A contract for the delivery of a quantity of oats provided that 
deliveries should commence in October, and ' ' that the quantity herein 
specified may be increased or decreased at the option of the United 
States, not to exceed 20 per cent thereof, at any time or times, 
during the continuance of the contract," and further provided for a 
delivery of a certain quantity each month. The contractor con- 
tended that each monthly' delivery should be treated as a separate 
contract and that the 20 per cent reduction should be applied to each 
montlily delivery. Held, that there is nothing in the language of the 
contract to warrant the construction that the 20 per cent reduction 
should be applied to eaqh monthly delivery separately but all might 
be made at one time. C. 27506, Nov. 22, 1910. 

XXV. When the United States comes into the occupancy of prem- 
ises under a contract either express or implied to pay rent, there arises 
an implied obligation on the part of the United States to so use the 
premises as not to injure it unnecessarily. Such an obligation results 
from the relation of landlord and tenant.^ So, where lands are leased 
for maneuver purposes; held, that the United States would be liable 
for damage to buildings, fences, or crops in consequence of such use 
and occupation, and the officer charged with executing the contract 
could hquidate such damages. C. 14971, July 23, 1903. So, where 
a house was occupied under circumstances constituting an implied 
lease; held, the United States would be liable for damage to the house 
and furniture during such occupancy. C. 14-617, May 12, 1903. So, 
where a berth and landing place for the use of boats of the Quarter- 
master's Department was leased, and a United States steamer colhded 
with a portion of the wharf adjacent to the berth leased by the Gov- 
ernment, held that the United States would be hable for the resulting 
damage under an implied covenant to use the premises in a tenant- 
able and proper manner. C. 144^^1 Apr. 11, 1903. 

XXVI. Where a contract provided for installing a wireless tele- 
graph system in Alaska between two points, one of which was de- 
scribed as "accessible to boats propelled by steam or other power," 
and it was subsequently discovered tnat it was impossible for a steamer 
to approach closer than 75 miles of the point in question, held that the 
representation as to reaching the point by boats was one which was 
understood to be pecuharly within the knowledge of the United 
States authorities, and should be treated as a warranty. C. 12705, 
Apr. 3, 1903. 

XXVII. A contract was entered into by the Government for the 
construction of certain buildings at Fort St. Philip, La., the contract 
providing that the contractor should be responsible for damage by 
lire. In order to protect himself the contractor took out fire insur- 
ance on the buildmgs. The time hmit for the work expired on 
December 15, 1907, on which date the Government took possession, 
according to the terms of the contract, for the purpose of completing 
it and charging the excess cost to the contractor. Held, that as the 
insurance was intended to protect the contractor and its surety from 
the Uability imposed by the contract, and as the contractor was 
chargeable with the excess of the cost of the work, the Government 
could continue the insiirance, charging the expense of the same to the 
contractor as a part of the cost of the work. C. 21735, Feb. 18, 1908. 

1 U. S. V. Bostwick, 94 U. S., 65; Mann. v. U. S., 3 Ct. Cls., 411; II Comp. Dec, 
407.; 9 id., 488. 



378 CONTRACTS XXVIII. 

XXVIII. Where, at the end of the 10 days specified m his guaranty, 
the accepted bidder had failed to enter into the contract, held that the 
Habnity of the guarantors had attached, and that, the pubUc interests 
not being prejudiced, the contract might legally be entered into with 
one of the guarantors, as an open-market transaction in which he 
takes the risk on his own account at the rate proposed in the bid. 
P. S2, 188, May 4, 1889. _ ' 

XXIX. In the absence of a provision in the contract or the accom- 
panying bond requiring the Government to call upon the surety to 
carry out the contract m the case of a default of the contractor, held 
the Government would be under no obhgation to give the surety such 
an opportunity. C. 24639, Mar. 27, 1909. 

XXX. Where the lowest bidder was a partnership, and before the 
contract based on the bid could be signed, the partnership was dis- 
solved, held, that there was no legal objection to allowing one of the 
members of the partnership to take up the bid and enter into a con- 
tract. This would be equivalent to rejecting all bids and then making 
a contract without further advertisement with the member of the 
partnersliip. C. 12827, Sept 10, 1902. 

XXXI. Payments due on a contract with the Government, where 
the contractors are partners, may legally be made to any member of 
the firm, notwithstanding one of them may have filed a protest and 
notice against payment to one of the partners.^ C. 3210, May 20, 
1897. 

XXXII. Held, that the Army Regulations are not strictly appli- 
cable to contracts of the United States Soldiers' Home, as the home is 
under the control of a board of commissioners who are expressly 
empowered to establish regulations for the general and internal 
direction of the home. However, as the Army Regulations provide 
comprehensive instructions for the letting of public contracts based 
on law and experience, it is believed that they may wisely be followed, 
except where the board of commissioners for the home shall have 
prescribed different regulations. C. 19921, June 16, 1906. 

XXXIII. A proposed contract, to be signed by both the contracting 
officer and the employee, provided that the employee would not leave 
the service of the Engineer Department unless by the consent of the 
local representative of the Engineer Department without giving 50 
days' notice of his intention to do so, and that in case of his violation 
of this provision the employee would forfeit to the United States all 
pay due him at the time of quitting the service. Held, that the pro- 
posed contract was not unreasonable or oppressive, and there was no 
legal objection to it. C. 23026, Apr. 3, 1908. 

XXXIV. The Government had a contract with a company to fur- 
nish electricity, the contract giving the Government an option to 
renew the contract from year to year for 10 years. Toward the close 
of the first fiscal year tne Government advertised for bids for fur- 
nisliing electricity for the second fiscal year. Held, that the act of 
the Government in inviting bids did not constitute an abandonment 
on its part of its option to renew the contract, but should be regarded 
merely as a means used by it of ascertaining whether or not it would 
be to the interest of the United States to exercise the option. C. 
28514, June 10, 1911. 

* Noyes v. New Haven, New London, and Stonington R. R., 30 Conn., 14, 15; 
Lindley on Partnerships, 218; American and Eng. Encyclopaedia of Law, 2d ed., voL 
22,160; 30Cyc.,482. 



CONTRACTS XXXV. 379 

XXXV. A contract for printing provided that the contractor should 
furnish the labor and material ''to do promptly all printing and ruling, 
and furnish the paper and cardboard for the same that may be re- 
quired at Headquarters Atlantic Division and Department of the East 
during the fiscal year." Held, that printing for a constructing quar- 
termaster in the department who was carrying on the work of con- 
struction under the authority of the Quartermaster General is not 
included in the contract. C. 23212, July 7, 1908. 

XXXVI. There is no statute that requires contracts under the War 
Department to be under seal, and therefore a corporation contracting 
witn the War Department need not attach its corporate seal. C. 
2878, Jan. 19, 1897; 15675, Dec. 23, 1903. 

XXXVII. A contract which expressly provided that "it shall be 
subject to approval of the Chief of Engineers" was duly signed by the 
contracting parties, but before approval the contractor failed and its 
business was placed in the hands of a receiver; lieM, that the C5hief of 
Engineers legally could refuse to approve the contract and then re- 
advertise for proposals or could approve the contract and permit the 
receiver to carry it out. C. 7508, Jan. 6, 1900. 

XXXVIII. Where bids were requested for a certain type of pickaxe 
which the Quartermaster General considered obsolete and tne con- 
tract was subject to the approval of the Quartermaster General; held, 
that the Quartermaster General could properly withhold his approval 
of the contract and call for bids for a more suitable kind of pickaxe. 
C. 28136, Apr. 14, 1911. 

XXXIX. A contract for dredging provided that ' ' should the time 
for the completion of the contract be extended, all expenses for inspec- 
tion and superintendence during the period of the extension, the 
same to be determined by the engineer officer in charge, shall be 
deducted from payments due or to become due to the contractor: 
Provided, however, That if the party of the first part shall, in the 
exercise of his discretion, because of freshets, ice, or other force or 
violence of the elements, allow the contractor additional time, in 
writing, as provided for in the form of contract, there shall be no 
deduction for the expenses for inspection and superintendence for 
such additional time so allowed," and further provided that if the 
contractor should ' ' by freshets, ice, or other force or violence of the 
elements, and by no fault of his own, be prevented either from com- 
mencing or completing the work, or delivering the materials at the 
time agreed upon in this contract, such additional time may, in writ- 
ing, be allowed liim from such commencement or completion, as, in 
the judgment of the party of the first part, or his successor, shall be 
just and reasonable," held, that it would seem that the loss of a 
dredge by fire not resulting from lightning or some other superhuman 
agency would not be a loss by "force or ^dolence of the elements," 
held further, that under the rule that general words following specific 
instances are to be understood as covering cases similar to those 
specified, the words "force or violence of the elements" should be 
construed to mean a force or violence of the kind specified in the pre- 
ceding words — that is, such a force or violence as would interrupt the 
work, and held further, that even if it should appear the fire occurred 
without fault or negligence on the contractor's part, still no reason 
appeared why the contractor could not have bought or liired another 
dredge to replace the one destroyed by fire, and in the absence of such 
a showing it can not be said that the failure of the contractor to com- 



380 CONTRACTS XL. 

plete the work was "by no fault of his own."^ C. 12598, May 18, 
1908. 

XL. Where a contract called for the removal of "silt, sand, clay, 
and gravel," and many bowlders were found which the contractor 
was not required under his contract to remove, but the contractor, 
without contract, order, or request from the proper oflS.cer removed 
such bowlders. Held, that the extra work involved in removing such 
bowlders should be considered as having been voluntarily rendered by 
the contractor, and there could be no recovery against the Govern- 
ment for such work. P. 63, 180, Jan. 10, 1894; G- 23546, Nw. 3, 
1910. So held, also, where, although the work was not required under 
the terms of the contract, it was done for the protection of the con- 
tractor, and without orders from the officer in charge.^ C. 23546, 
Nov. 3, 1910. 

XLI. Prospective bidders for a contract to install an electric light- 
ing system m the PhiUppine Islands were notified "that proposals 
will be considered with free entry of all material to be used therein, 
with the proviso that if duty is collectible the contract price will be 
increased to cover the amount of duty collected," which provision 
was made a part of the contract. The contractor was required to 
pay duty on some of the material used in carrying out the contract. 
After the contract had been entirely completed the contractor re- 
quested an additional payment to compensate him for duties paid 
on material used in the contract. Held, there was no legal objection 
to making such additional payment.^ C. 24076, Dec. 30, 1908. 

XLII. A contract provided for the delivery of hay, oats, etc., "at 
the various stables, officers' quarters, and other places in the city of 
Washington and within one mile beyond the limits of said city, Sol- 
diers' Home, National Cemetery, and Battle Ground National Ceme- 
tery, Brightwood, D. C," with a further provision for reducing the 
SLiantity in case of withdrawal of troops, held, that the contract 
early provided for the supply of such forage as may be required to 
meet the needs of the service in the city of Washington and immediate 
vicinity, and that the contract could not be construed so as to permit 
the Quartermaster's Department to require the contractor to furnish 
forage at Washington beyond the needs of the service at that pouit, 
the forage to be subsequently shipped by the Government to Front 
Royal, Va., for the needs of the service at the latter place. C. 29239, 
Nov. 14, 1911. 

XIIII. The expression in a contract that the contractor agrees 

"for heirs, executors, and administrators" is not essential. 

The personal representatives of a deceased contractor are entitled to 
carry out his contracts, and the estate, both personal and real, of 

' In XVI Comp. Dec, 618, in construing the words "by freshets, ice, or other force or 
Adolence of the elements, and by no fault on his part," it was said, "The only thing for 
which additional time may be allowed under tne terms of the contract are freshets, 
ice, or other force or violence of the elements, and then only in case the delay was 
caused by no fault on the part of the contractor." 

2 See Kingsbury ^).U.S.,lCt.Cls., 13. Murphy^. U.S., 13 id., 372. Utica, Ithaca, 
etc., Ry. V. U. S., 22 id., 265. In Barlow v. U. S., 35 Ct. Cls., 514, it was held that 
additional work or better material than that required by the contract, ordered by a 
subordinate without authority to do so, must be regarded as voluntary service, and no 
contract for it can be impliecf. 

* This opinion was concurred in by the Comptroller under date of Jan. 21, 1909. 
Decision not published. 



CONTRACTS XLIV. 381 

such contractor is liable for his debts and contracts independently of 
the provisions of the contracts. C. 2878, Jan. 19, 1897. 

XIIV. Certain contracts for forage provided that the oats and hay 
furnished should "be of the best merchantable quality and of the 
highest recognized commercial grade of the locality." Held, that the 
language quoted simply furnished a standard by wliich the receiving 
officer was to judge the forage offered under the contract; that the 
term "locality" had reference to the towns and country in the vicinity 
of the post where the contractor could reasonably be expected to pur- 
chase the forage. State fines would have nothing to do with the mat- 
ter, and no particular number of miles could be given as the distance 
to which -the locality would extend. It has reference to the sources 
from which the forage could reasonably be obtained; that is, where 
the purchasing officer, the local quartermaster, would probably, in 
the exercise of good judgment, purchase in open market. C. 1993, 
Jan. 22, 1896; 2673, Oct. 12, 1896. 

XLV. The specifications of a contract for dredging stated that the 
material ranged from soft mud to clay and sand, but stated that the 
information as to character of material was in no wise guaranteed, 
that bidders were expected to satisfy themselves in all respects as 
to the work to be done, and that all material encountered must be 
removed by the contractor at the contract price " except solid ledge." 
The contractor encountered material wliich it was admitted by nim 
was not "solid ledge," but he contended that it was such material as 
was not contemplated by the contractor, that in respect to the diffi- 
culty of removal, it approximated in character "solid ledge" and was 
not such material as would reasonably come under a contract for 
"dredging." Held, that the removal of this material came within 
the terms of the contract. C. 13525, Oct. 23, 1902. A contract for 
grading and sewer and drain trenches was let for a certain sum with 
an additional allowance per cubic yard for rock excavation." The 
specifications which were made part of the contract provided that 
" the nature of the material to be excavated is not known, but bidders 
should ascertain this for themselves, if possible, before submitting 
bids. If rock is encountered in the excavation it will be measured 
and paid for as rock excavation, provided that no bowlder is to be 
cojisidered as rock excavation unless it equals or exceeds 1 cubic 
yard in volume. * * * ^^ work to be paid for by the cubic yard 
as earth or rock excavation, both being measured in place before 
being distributed. No other classification of material will be con- 
sidered, and only actual ledge rock or bowlder to be considered as 
rock excavation." The contractor made his bids on the best infor- 
mation he could obtain from the contracting officer and others, but 
unexpectedly encountered more rock than expected, a large quantity 
being "in the form of bowlders, frequently large and in great masses, 
but not of the size to be paid for as rock under the terms of the specifi- 
cations; also, an enormous quantity of hardpan, but not more than 
10 to 15 per cent of the amount of soft and easily moved earth" that 
he assumed in his estimate, and the material bemg further described 
as a kind of "concrete of cement and fine stones." Held, there was no 
room to say the contract contemplated only ordinary earth and rock 
excavation, that the excavation was included in the terms of the 
original contract, and a supplemental contract could not legally be 
made to pay higher prices than set out therein. C. 17234, Dec. 16, 
1904' The specifications on which bids were invited, and which 



382 CONTBACTS XLV. 

became part of the dredging contract, defined the material to be re- 
moved as ''sand, gravel, stones, and bowlders," and stated that "the 
indications given as to the character of material to be excavated shall 
not be accepted as conclusive, but bidders are expected to examine 
the several localities and determine this question for themselves. 
It will be assumed that proposals are based on a thorough under- 
standing of the character of the work to be done ; that the price bid 
will cover all contingencies or risks attaching to it, and that no con- 
cession or allowance will be made for any lack of information on the 
part of the contractor." The contractor in prosecuting the work 
actually encountered "a very heavy stratum of bowlders embedded 
in a compacted sand, very tenacious and very difficult to dredge, 
the upper slope of the shoal, beyond the limits of the trial dredging, 
consistmg of very firmly packed bowlders and proving to be much 
harder than originally anticipated." Held, there was no room to say 
the contract contemplated only ordinary sand, gravel, stones, and 
bowlders, that the dredging was included in the terms of the original 
contract, and a supplemental contract could not be made to pay 
higher prices. C. 20875, Jan. 7, 1907. A contract for the construc- 
tion of earthwork along the Illinois & Mississippi Canal provided that 
''the material throughout the canal trunk, as far as known, is shown 
by borings * * * \y^\^ bidders must satisfy themselves as to the 
nature or the material to be encountered," and that "the prices bid 
for earthwork shall include all work of every character necessary to 
deliver to the United States the complete and finished construction." 
The contractor reported that "the material encountered and which 
could not be foreseen when the original specifications were prepared 
is a very fine sand or quicksand m pockets, alternating with soft 
mud or vegetable matter that flowed, and makes it impracticable to 
secure the slopes and grades specified." Held, that the contractor 
was bound to construct the earthwork in conformity with the specifi- 
cations, without regard to the character of the material encountered, 
that a supplemental contract modifying the original contract in 
certain particulars, and providing that the contractor be paid at con- 
tract rates for about 100,000 cubic yards of material for which pay- 
ment could not be made under the original contract but which was 
necessary for the construction of the canal and would have to be 
performed by the contractor himself would not be for the benefit of 
the United States and therefore could not legally be made.^ C. 5082, 
Oct. 10, 1898. Where a contract expressly stated that "the river 
bed at No. 2 consists of gravel throughout." Held, that such lan- 

fuage did not constitute a guaranty by the United States that the 
ed shall be gravel tliroughout, in view of other provisions in the 
contract that bidders are expected ' ' to visit the site of the lock and 
dam and ascertain the nature and location of quarries," etc., and that 
the encountering of rock at sites other than the one under consider- 
ation ' ' may make a difference in the amount of excavation necessary, 
and a variation of the amount of material required in the construction 
of the lock walls; but, as all prices are based on units of materials 

' In Simpson v. U. S., 172 U. S., 372, it was held that the discovery of unforeseen 
and unexpected difficulties in the execution of a contract, such as the existence of 
quicksand on the site selected for a structure, is no ground upon which to reform the 
contract as having been entered into under mutual mistake. The contractor should 
assume the risk of construction. 



CONTRACTS XLVI. 383 

removed and built in place, these differences in the foundations at 
the different sites can only affect the cost of the lock to the United 
States, and not to the contractor." ^ G. 62JfJi., Nov. 5, 1898. 

XLVI. Where the outlet for the post sewer, Fort Leavenworth, 
was located above the point of intake of the water company that sup- 
plied the post with water and it was necessary to extend the sewer to 
a point below the intake, in order to preserve the purity of the water 
supply, held, that as the proposed extension of the sewer is necessary 
to protect the post water supply, and as the entire sewer will be the 
property of the Government, the Secretary of War may properly 
authorize its construction as a Government undertaking, and that as 
an incident of such undertaking he may legally authorize an agree- 
ment with the water company that in consideration of such construc- 
tion by the Government and of the benefits resulting therefrom to 
the water company the price of water to the Government shall be re- 
duced by furnishing water at one-half the contract price until the 
saving to the Government shall amount to the cost of extension. C. 
26930, Bee. 8, 1910. 

XLVII. The circular of instructions to bidders for certain fire 
apparatus stated that as early dehvery was essential, bidders "will 
state in their proposals the number of days from date of award that 
delivery will be made," and the accepted bidder stated that he would 
begin work "at once after receipt of award," and that the several 
items would be delivered within a certain number of days "from 
acceptance of bid." The letter awarding the bid was sent to the 
lowest bidder January 5, 1910, and to allow time for the receipt of the 
same the contract was dated January 10, but was not approved until 
February 4.^ In the contract it was stated that the several items 
would be dehvered within a certain number of days "from the date of 
contract." The contractor contended that the time for delivery 
should be calculated from the date of receipt by him of an approved 
cow of the contract. Held that the supplies should be delivered 
within the specified number of days after January 10, the date of the 
contract. C. 26762, May 28, 1910. 

XLVIII. A contract was entered into for furnishing the Govern- 
ment 10,000 barrels of cement, with the option on the part of the 
engineer officer in charge of increasing or decreasing the amount by 
50 per cent, which would make the mmimum amount to be supplied 
5,000 barrels, and, as the cement was not passing satisfactory tests, 

1 See Atlantic Dredging Co. v. U. S., 35 Ct. Cls., 463. 

2 In Cathell v. U. S., 46 Ct. Cls. 368, the effect of requiring a contract to be approved 
by a superior officer was stated as follows : " It has been decided repeatedly by this court 
that a contract providing for the approval of a superior officer is not a valid subsisting 
agreement until such approval is made according to the contract. (Snare & Triest Co. 
V. United States, 43 Ct. Cls., 367; Ittner i). United States, 43 Ct. Cls., 336; Little Falls 
Knitting Mill Co. v. United States, 44 Ct. Cls., 1.) The Supreme Court in Camden 
Iron Works v. United States (181 U. S., 453), and Monroe v. United States (184 U. S., 
524), affirmed this doctrine. Neither the contractor nor the defendants incurred 
liabilities under the contract until it was approved. The defendants were in no posi- 
tion to assert rights under a contract which they neglected to execute. The contract 
having expressly held in abeyance the date of its validity and lodged in a supervising 
official the final word of assent or dissent, made the approval thereof a condition pre- 
cedent to its binding character. The defendants having failed to perform this condi- 
tion until a time subsequent to the date fixed in the agreement for the performance 
thereof, waived this clause of the contract and imposed upon the contractors an obliga- 
tion to complete the work within a reasonable time. The record discloses that they 
did complete the work within a reasonable time.'' 



384 CONTRACTS XLIX. 

the contractor, after 5,000 barrels had been ordered and delivered, 
was notified "that no further cement would be ordered under the 
contract." AH the cement already ordered and delivered was 
rejected, and purchases elsewhere were made to the extent of 10,500 
barrels at an excess of cost over the contract price. Held, that the 
action of the Government amounted to an election to order the 
minimum quantity of 5,000 barrels only and that by such action the 
contract was terminated. Therefore the Government was entitled to 
recover from the contractor only the loss on 5,000 barrels. C. 26455, 
May 9, 1910: 

XLIX. Paragraph 525, Army Regulations (535 of 1910), which 
provides that ''information in regard to supplies or services for which 
proposals have been invited will be furnisned, on appHcation, to all 
persons desiring it but no person belonging to or employed in the 
military service will render assistance in the preparation of propos- 
als." Held, that this regulation is so general as to include within 
its scope all persons belonging to the military service. It includes 
an officer on the retired Hst. C. 16166, Nov. 15, 1905. 

L. Paragraph 734, Army Regulations, 1901 (663 of 1910), provides 
that "disbursing officers will not settle with heirs, executors, or 
administrators, except by authority of the proper bureau of the War 
Department, and upon accounts that have been duly audited and 
certified by the proper accounting officers of the Treasury." Held, 
that tliis regulation refers only to accounts arising out of dealings 
with the testator or intestate, and does not refer to a case where a 
contract was made with an executor or administrator in his official 
capacity. C. 16550, July 6, 1904. 

LI. The Army appropriation act for the year ending June 30, 1895 
(28 Stat. 233), provided that open-market purchases could be made 
when the aggregate amount required did not exceed $200, but that 
"every such purchase shall be immediately reported to the Secretary 
of War." ^ On the question as to the powers and duties of the Secretary 
of War in reference to the class of purchases referred to, held, that tins 
legislation considered in connection with section 216, R. S., which pro- 
vides that the Secretary of War "shall perform such duties as snail 
from time to time be enjoined or entrusted to him by the President 
relative to military commissions, the military forces, the warlike stores 
of the United States, or to other matters respecting military affairs," 
vests in the Secretary the power and the duty to make necessary 
regulations to carry into effect the legislation in question and in doing 
so he may legally require proposed open-market purchases to be 
submitted for his approval.^ C. 1112, Mar. 12, 1895. 

III. Section 3651, R. S., forbids disbursing officers to exchange the 
funds furnished them, with certain exceptions which do not include 
foreign coin, and "every such disbursiug officer, when the means for 

> In V Comp . Dec. , 259, it was held that the provision of the act of July 5, 1884 (23 Stat. 
109), that purchases of supplies for the Quartermaster's and Commissary Departments 
in cases of emergency "must at once be reported to the Secretary of War for his 
approval " is directory only, and the failure of certain officers of these departments 
to make reports of such purchases does not invalidate the purchases or the payments 
therefor. A provision of the act of Mar. 15, 1898 (30 Stat. 322), requiring open-market 
purchases to be reported to the Secretary of War, was held by the comptroller in an 
unpublished opinion to be directory only, and that a failure to make a report did not 
affect the validity of the purchase. See C. 6931, Oct. 9, 1899. 

2 The act of June 12, 1906 (34 Stats. 258), which is still in force specifically author- 
izes the Secretary to prescribe regulations. 






CONTRACTS LIII. 385 

his disbursements are furnished him in gold, silver, United States 
notes, or national-bank notes, shall make his payments in the moneys 
so furnished." Held, that in view of the aoove statute a Govern- 
ment contract should not call for payment in foreign coin, but an 
amendment to the Army Regulations requirmg that in contracts in 
the Philippines calling for the payment of money by the United 
States, payment should be of a specified amount of United States 
money, or of so much United States money as might, at the time of 
payment, be eqilal to a specified number of Mexican silver dollars at 
a designated bank, would not be in conflict with the above section 
of the Revised Statutes. C. 8393, July 9, 1900. 

LIII. Where communications and other papers are received from 
business firms with the name of the firm signed by means of a type- 
writer or rubber stamp, recommended that in view of the commercial 
practice in this regard that such signatures should be accepted with- 
out question, except as to formal instruments such as formal vouchers, 
contracts, bonds, bids, etc. C. 27933, Mar. 3, 1911. 

II V. A contract for the making of an 18-inch gun provided for a 
test to be prescribed by the Secretary of War. In pursuance of this 
provision the contractor wrote to the Secretary suggesting that tests 
should consist of the firing of five shots. The Secretary indorsed this 
request "approved" and referred it to the Chief of Ordnance, who 
returned it with the statement that five shots was not the usual test 
to which guns were subjected. Thereupon the Secretary of War 
wrote to the contractor and, without informing him that he had ap- 
proved its request, informed him of the reply of the Chief of Ordnance. 
Held, that under the circumstances the Secretary of War could set 
aside his first action of approval and prescribe whatever test of 
endurance he might decide to be a proper one. C. 691^5, Aug. 28, 
1899. 

LV. Where a contract for repairing a transport req^uired that the 
contractors should render each morning a sworn itemized statement 
setting forth in detail the amount and cost of material and labor 
used in making the repairs during the preceding day, and, after the 
completion of the work, bills for a large amount that was not included 
in the daily statements were submitted, held, that if the work repre- 
sented by the bills was actually performed and was covered by the 
contract the United States is legally bound to pay for it, notwith- 
standing the failure to include it in the daily statements. C. 10299, 
May 4, 1901. 

LVI. Where a biU of sale of a steamship belonging to a partnership 
was under seal and signed by only one member of the partnership, 
held that the implied authority of a partner to execute contracts 
for the firm of which he is a member does not extend to contracts 
under seal, and, therefore, where a partner of a firm signs a paper 
under seal on behalf of the firm there should be filed with it evidence 
of an express authority from the other partners to sign for them;*^ 
but that in a case where such express authority has not been ob- 
tained, and it is not convenient to obtain the signature of aU the 
members of the firm, a statement should be obtained, signed by the 
other members, to the effect that the signing member had authority 
to execute the bill of sale. Such a statement, taken in connection 

^ See Bonds. I. R. 
93673°— 17 25 



386 CONTRACTS LVII. 

with the deHvery of and the payment for, tlie vessel, will pass title 
to the United States. C. 4611, July 15, 1898. 

LVII. A cylinder installed in a steamer constructed for the Govern- 
ment did not meet the tests required by the contract, but it was prob- 
able that the cylinder as installed would continue to prove satisfactory. 
Held that there was no legal objection to accepting the cylinder as 
installed upon the contractor filing with the department a bond 
guaranteed by a surety conditioned to replace the cylinder and pay 
for the hire of a substitute vessel in the event that it was necessary 
to replace the cylmder within two years and upon the contractor 
further giving his sole bond to cover the remaining period of the 
natural life of the cylinder. G. 26577, Apr. 22, 1910. 

IIX. The officer charged with the lettmg of a contract wrote to the 
bidder whose bid had been accepted to appear at the office of the 
officer to execute the contract and to bring his sureties with him. 
In response to this direction the bidder appeared and his papers 
were executed before a notary in the office, and for the services of 
the notary a charge was made. Held that when a contract is awarderl 
to a person he has a right to go before officers of his own choosing 
(if they are of a class of officers such as the Government requires) 
and execute his bond and make his affidavit, etc., and submit them 
to the Government officers for acceptance. The Government officer 
has not the right to call him before a particular official of his choosing 
to execute the necessary papers. C. 167, Aug. 18, 1894. 

IX. A bid for the transportation of troops and supplies to Alaska 
was received from a company whose road ran partly through Canadian 
territory. Held, as to the transportation of troops, that as the rule 
of international law in respect to the passage of detachments of foreign 
troops through friendly territory is that such troops can pass only 
with the express permission of the friendly nation, a clause should be 
inserted in the contract requiring the company to obtain the written 
consent of the Canadian Government to the transportation of United 
States troops through Canadian territory, and that in case such per- 
mission should be refused the troops should be carried to their 
destination by another route wdthout additional expense to the 
United States. Held, as to the transportation of supplies, that 
although the rule of international law does not require the consent of 
a friendly nation to the passage through its territory of supplies 
belonging to a foreign nation in the ordinary course of commerce, 
and although duties ordinarily are not levied on such supplies, yet as 
a matter of precaution a clause should be inserted in the contract 
that any duties or impositions in the nature of customs dues should 
be paid by the contractor and should not become a charge against 
the United States. C. 14552, Dec. 18, 1903, Jan. 19, 1906. Where 
a contract was to be made for the transportation of supplies of the 
United States through Mexican territory at a time when conditions 
were somewhat unsettled, advised that there should also be inserted 
in the contract a clause requiring the carrier to make good any loss 
to the property which might result from political or other dis- 
turbances, as well as a clause requiring the contractor to pay any 
duties or impositions in the nature of customs duties. C. 284S0, 
May 26, 1911. 

IXI. Blasting carried on in the execution of a Government con- 
tract for rock excavation near a military post injured the plastering. 
It appeared that the blasting was carried on with reasonable care. 



CONTRACTS LXII — CONTRACTOR. 387 

Held, that in tiie absence of facts showing that the performance of 
the contract by blasting was not contemplated by the parties, or that 
the contractor assumed the responsibility for damages to the United 
States as the result of its operations, no recovery could be had against 
the contractor for damages. C. 27678, Jan. 23, 1911. 

IXII. In the case of Belknap v. Schild (161 U. S., 10), decided by 
the United States Supreme Court in February, 1896, it was held that 
where the United States owns a piece of property and is in peaceable 
possession of it, the Government can not be enjoined b}^ courts and 
prevented from using it for the Government purposes for which it was 
mtended. So where, after an electric plant had been constructed 
under contract at Watervliet Arsenal, suit was subsequently brought 
against the contractor by another electric company for infringement 
of its patent in tJie construction of the plant, making the commanding- 
officer of the arsenal a defendant, asking for damages and that the 
latter be permanently enjoined from using the plant, held upon a 
request by the contractor for final payment, that in view of the 
decision of the Supreme Court cited, there was no objection to making 
the payment. C. 716, Apr. 17, 1896. 

CROSS REFERENCE. 

Bonds not under seal See Bonds I F 2. 

Double aspect of bond See Bonds I M 7. 

Enlistment contract See Enlistment. 

Pay and allowances I C 2. 

Extension of See Bonds I M 6. 

Implied See Claims VII C 2; 3. 

Lease renewed See Public property VII A 5. 

Modifications See Bonds I M 4; 10. 

Muster in See Volunteer Army II E. 

Payment for preparation of. See Appropriations V C. 

Rescinding of , for fraud See Pay and allowances III C 2 c (1). 

Supplemental, sureties on bond not hound by ^Qe Bonds I M 3. 
To pay local authorities for inspection See Tax III J. 

services. 
To carry troops See Army I G 3 b (2) (a) [2] [a]. 

CONTEACT DENTAL SURGEON. 

See Army I G 3 d (4) (d). 

CONTRACT SURGEON. 

See Articles of War LXXXII A 2. 
See Army I G 3 d (4) to (5). 

Disability of, not basis for retirement See Retirement I B 5 b. 

Service as, under act of Apr. 23, 1904 {33 See Retirement I C 1 d. 
Stat. 264). 

CONTRACTOR. 

See Contracts. 

See Eight-hour Law III. 

Alien, employment of. See Alien VII. 

Bonds of. See Bonds III to IV. 

Cutting tvood on military reservation See Public property III F 1. 

Penalty envelopes See Communication II A 2 b. 

River and harbor work See Navigable waters X C to D. 

Title of, in bond See Bonds 1 1. 



388 CONVENING AUTHOEITY COEONEE. 

CONVENING AUTHORITY. 

See Articles of War LXXI A to LXXII 

I 3a(l). 
See Discipline III to IV; VII B 2; IX L 2. 

Charges, withdrawal of. See Discipline II I. 

Contempt, action in case of See Discipline VII C 2. 

False sioearing, action on See Discipline VII F. 

Incompetent See Discharge XVI G; G 4. 

Discipline XV H 1 to 2. 
Of summary court See Discipline XVI E 1 to 9. 

COOK. 

Paid from company funa See Pay and allowances I C 6 b (4). 

Soldier detailed as See Articles op War XXI B 2* 

Volunteers See Volunteer Army III B 2. 

COPIES OF OFFICIAL RECORDS. 

See Discipline XI A 17 a (2) (a) [1] [d\. 
Furnished from War Department See Official records I A 1 to 3. 

COPY OF CONTRACT. 

See Contracts XX C 12; 14. 

COPYRIGHT. 

I. AUTHOR OR PROPRIETOR ALONE CAN COPYRIGHT. 

I. The author or proprietor of a hterary work is the only one who 
can legally copyright it, and he has the exclusive right to do so.^ 
Held that a retired Army officer who had purchased a set of electro- 
type plates of the Drill Kegulations from the Public Printer was not 
authorized to copyright them, as he was not the author and did 
not become so by making an "abridgment." ^ P. 50, 350, 373, Nov. 
25 and Dec. 1, 1891. Held that an official of the War Department 
could not copyright in his own name a compilation of facts derived 
from records the property of the United States. P. 43, 294, Oct. 25, 
1890. Held that an officer may not copyright a book which he pre- 
pares under orders from competent authority and which, after sub- 
mission to a board of officers and a slight revision, is approved by 
the Secretarv of War for publication to and use by the Army.^ U, 
3433, Aug. 17, 1897. 

cross reference. 

By officer See Articles of War LXII D. 

CORAM NON JUDICE. 

Discharge by United States Commissioner . .See Discharge XVI D 1. 

CORONER. 

Fees of See Claims XII O. 

Inquest by See Command V A 7 . 

1 Drone on Copyright, 324; sec. 4952, R. S.; and sec. 1, c. 565, act of Mar. 3, 1891. 

^ Gray v. Russell, 1 Story, 11; Drone on Copyright, 158, also see sec. 52 of the pub- 
lic printing and binding act of Jan. 12, 1895 (28 Stat., 608). 

^ Wheaton v. Peters, 8 Peters, U. S., 591; American and English Enc. of Law, Vol. 
IV, pp. 154, 158, first edition. 



CORPORATIONS — CROPS. 389 

CORPORATIONS. 

Bonds of. See Bonds I G to H; IV G; J. 

Foreign See Bonds V I ; J. 

Officer may belong to See Contracts XV A 5. 

Post exchange is not See Government Agency II A 2. 

Stockholders as sureties See Bonds I M 13. 

CORPS COMMANDER. 

As convening authority See Articles of War LXXII D 1. 

CORPUS DELICTI. 
Proof of. See Discipline XI A 7 b. 

CORRESPONDENCE. 

See Communications. 

COUNSEL. 

Assignment of See Discipline VII D. 

Assistant to judge q/ivocate See Discipline IV I 1 ; 2. 

Continuance to secure See Articles of War XCIII A 1. 

Examining board See Retirement I B 6 a (1). 

General court-martial See Command V A 5. 

Discipline V. G to H. 

In absence of accused See Discipline VIII H 2. 

Retired officer as See Retirement I H 1. 

Right to See Discipline XV B. 

COURT OF INQUIRY. 

See Articles of War CXV A; B; CXIX 
A; B; CXXI A. 

Juridiction of. See Discipline XVIII B. 

Opinion by See Articles op War CII G. 

Retired officers as members See Retirement I K 2 e. 

COWARDICE. 

Punishment for See Articles op War (100) C A ; B. 

CRIME. 

Charging of. See Discipline II D 19. 

CRIMINATING EVIDENCE. 

By witness See Discipline X H 1 ; 2 

By accused See Discipline XI A 14 b ; b (1). 

CRITICISM. 
Of officer See Articles of War LXII C 1; D. 

CROPS. 

Claim for damage to by soldiers See Claims II; IV. 

Damage to, during State encampment See Militia VI B 1 e (6). 



390 CUBA — DATE. 

CUBA. 

Ertradiiion from See Extradition IV. 

Fifty-fourth article of war enforcible in See Articles of War, LIV G. 

Intervention in .See War I C 8 c (1) to (2). 

Naturalization See Alien III. 

Officer holding civil office in See Office IV A 2 e (6) (a). 

CUMULATIVE BONDS. 

See Bonds II B. 

CUSTOM OF THE SERVICE. 

Accuser remaining in court room See Discipline IV K. 

Ball and chain punishment See Discipline XII B 3 h. 

Challenge by judge advocate See Discipline IV O. 

Charges See Discipline II D 8 a. 

Clothing: Issues of to prisoners See Pay and allowances II A 3 a (3) (a). 

Colleges: Issue of arms to See Military instruction II B 2 a. 

Considered by courts See Discipline V G 4. 

Constructive pardon See Absence II B 7. 

Delegation of authority See Command VI A 1 a. 

Discipline I E 1. 

Discretionary punishment See Discipline XII B 2 a to e. 

Judge advocate advising court See Discipline IV C 1. 

Military commission See War I C 8 a (3) (a). 

Notice of discharge See Discharge XVII D 1. 

Pass See Absence I C 1. 

Ranh: date of. See Rank I Bib. 

Receipt of orders See Communications I B 1 a. 

Recess of court See Discipline XIII F. 

Relief of officer frovi duty See Command V A 1 a. 

Remarks by court See Discipline XII 0. 

Remission See Pardon XVI C. 

Sentence: adoption of. See Discipline XII B 3 a. 

Sentence of incapacity to hold office See Pardon XVI A. 

Sentence of suspension from, pay and duly. .See Command V A 1 b. 

Surrender of bonds by }7ar Department See Bonds I P. 

Three the minimum membership of military See War I C 8 a (3) (d) [1]. 
commission. 

Unauthorized punishments See Discipline XVII B 1 a; c. 

Wholly retiring officer See Retirement I B 3 c. 

CUSTOMS. 

Appropriation for paying See Appropriations XXXIX. 

Collection of under m,ilitary government See War I C 6 f (1). 

Commanding general may collect See War I C 8 a (2) (c) to (d). 

On Government property See Army I G 3 b (2) (a) [2] [a]; [b]. 

DAMAGES. 

See Contracts XVI C; XIX to XX. 

To private property during joint encamp- See Militia VI B 2 m; C 1 i; j. 

ment. 

DATE. 

Bond See Bonds I K to L. 

Discharge of sicJc soldier See Enlistment I B 2 i. 

Enlistment See Enlistment I A 8 to 9. 

Forfeiture See Pay and allowances III C 1 a (1) (a) 

[1]. 

Heat and light increased at promotion See Pay and allowances II A 1 c (5). 

Mu,ster-in See Volunteer Army II C 1. 

Muster-out See Volunteer Army IV D to E. 



I 



DEATH DEFAULT. 391 

Rank, attachment of See Rank I Bs,to C. 

Relativerank, attachment of See Rank II A to B. 

Retirement of officer See Retirement I A i a; D. 

Sentence operates See Pay' and allowances III C 1 b. 

Separation from service See Pay and allowances I A 1 a. 

Siispension after examination See Rank V C to D. 

Vesting of office See Office III A 6 to 7; B 3 to 4. 

DEATH. 

Of bidder See Contracts XI D 1. 

Of retired soldier See Retirement II F 1. 

Procedure in case of See Command V A 7 . 

DEBT 

See Private debt. 

Due to company fund See Government agencies III A to B. 

Of post exchanges See Government agencies II E to F. 

Refusal to pay .• See Article of War XXI B 1. 

DECEASED OFFICER OR SOLDIER. 

See Public property V F 1 b (3) (g). 

Appointment of deceased officer See Office III B 3 a (1). 

Burial of retired officer See Retirement II. 

Claim for pay See Militia XI Q. 

Deserter's release See Desertion XVII D. 

Pardon of See Pardon 1 1 . 

Pay due, used to reimburse company fund . .See Pay and allowances III B 7 a. 
Rank increased of retired officer not authorized See Retirement I C 2 c. 
Responsibility of quartermaster in connec- See Government agencies IX. 

tion with shipment. 
Transportation of See Appropriations LXIII. 

DECLARATION OF WAR. 

Not necessary See War I B 1 . 

Not necessary in Indian war See War I A 5 a. 

DECREPIT OFFICERS. 

See Militia IV G. 

DE FACTO OFFICERS. 

Status of. See Office V A 6 a. 

Vice illegally dismissed officer. . .■» See Office IV E 1 b (1) (a). 

DEED. 

Acceptance of. See Public property II A 3. 

Cancellation of •. . .See Public property II A 3 ' . 

Disposition of land without See Public property II B 1. 

Execution of, by President See Army I B 1 a (2). 

Execution of, by Secretary of War See Army I B 2 b (3) (a). 

Under authority of statute See Public property 1 1 B 2. 

Warranty to land sold by Government See Navigable water X F 1 

DEFAULT. 

On contract — . — See Contracts XX C 11. 



392 DEFENSES — DEPOSIT. 

DEFENSES. 

Responsibility for See Army I B 10. 

DEFENSE. 

Accused See Discipline V A to 1 1. 

Conduct unbecoming See Discipline XII Alia. 

Constructive pardon See Absence II B 7. 

Desertion See Desertion IX A to 0. 

Drunkenness See Discipline XII A 9 a. 

Embezzlement See Articles op War LXII C 2. 

Discipline XII A 12 b. 

Sleeping on post See Discipline XII A 10 a. 

Statute of limitations See Articles op War GUI B. 

DELAYED DELIVERY. 

See Contracts XIX B. 

DELEGATION OF POWER. 

By President See Command I A. 

By Secretary of War See Army I B 2 e (1) . 

To accept bonds See Bonds II L. 

To administer oath See Office III A 8 a (1). 

To arrest or confine See Discipline I E 1. 

To Chief of Engineers under river and harbor See Navigable Waters V B; X F 2. 
act. 

To convene court See Articles op War LXII E 1. 

Discipline III C 3. 

To pardon See Articles op War CXII A 1. 

To remove wrecks See Navigable Waters VII A. 

To review proceedings See Discipline XIV C. 

To sign contracts See Contracts I A 2; VI H. 

DEPARTMENT COMMANDER. 

Assignment to command by... See Command IV A. 

Convening officer See Articles op War LXXII A to 1 3 a (1). 

Discipline III to IV. 

Deposition of. See Articles op War XCI A 1. 

Duty under fifty -ninth article of war See Articles op War LIX K. 

Jurisdiction over retired enlisted men See Retirement II B 3. 

Neutrality See Army II K to L. 

Reviewing officer See Discipline XIV to XV. 

Summary sourts See Discipline XVI F. 

DEPARTMENT JUDGE ADVOCATE. 

Formulation of charge by See Articles op War LXXII I 3 a (1). 

Oath administering See Office III A 8 to 9. 

DEPENDENT PARENT. 

Discharge on account of See Discharge VI C 1; 2. 

DEPORTATION. 

Of persons by commanding general See War I C 8 (2) (<f). 

DEPOSIT. 

Attachment of public money in bank See Public money II C 3. 

Forfeiture of See Desertion XIV E. 

Sentence to, improper See Discipline XII B 4 C. 

Soldier's pay See Pay and allowances I C 7 to 8. 



DEPOSITION — DESERTION: SYNOPSIS. 39,3 

DEPOSITION. 

See Articles of War XCI A to K. 

Important officials See Discipline X D 1. 

Preparation of See Discipline IV B 3 a (1). 

Retiring hoard See Retirement I B 1 c (2). 

DEPEIVATION OF PAY. 

See Pay and allowances I A 1 b; III tc 

IV. 
See Discipline XII B to C. 
See Desertion V D to F; XIV to XV. 

DESCRIPTIVE LIST. 

Evidential value of See Discipline XI A 17 a (2) (6) [4]. 

See Desertion IX B. 

DESERTER. 

Alien, discharge of See Discharge XXVI A. 

Arrest of, while on pass See Absence I C 1 a; a (1). 

Character of. See Discharge II B 2 a. 

Claim for wrongful arrest as See Claims II. 

Clothing issued to, upon return See Pay and allowances II A 3 a (4) (c). 

Discharged without honor for See Discharge III B 5 a. 

Draft of. See Enlistment II F. 

Enlistment of. See Enlistment I A 9 f (2); (5); (8); g 

(3);h;D3b;c(13); (14); (15); (16); 

(18); (18) (6); (f); (h)(1). 

From draft See Enlistment II E. 

Honorable discharge of See Discharge II B 2. 

Make good time lost See Articles op War XL VIII A to F. 

Medical attendance for See Claims VIII. 

Muster out of. See Discharge XIII F. 

Pardon of. See Pardon VII B; XII: XIV. 

Restoration to duty See Restoration to duty. 

Enlistment I D 3 c (7); (14). 

Statement by See Discipline IX I 2. 

Status after muster out of organization. See Volunteer Army IV C 1 a (2) (6). 

United States Volunteers. 
Volunteer dropped as See Volunteer Army IV D 1 a (5) (b). 

DESERTER'S RELEASE. 

See Desertion XVII A to H; V F 6. 

DESERTION. 

I. DEFINED Page 399 

A. Two Elements — Each must be Proven. 

B. Does Not Necessarily Include Absence from Post. 

1. Desertion from pass. 

C. Desertion of Prisoners. 

1. Escape. 

2. By enlisting in enemy's army Page 400 

D. By Permitting oneself to be Drummed Out. 

E. Misbehavior Before Enemy Not Element op Desertion. 
n. DESERTERS AT LARGE. 

A. May Not Receive Pay if Fraudulently Secures Position in 
Quartermaster's Department. 



394 DESEBTioisr: synopsis. 

III. APPREHENSION. 

A. As Much Force May be Used as is Necessary. 

B. Any Forcible Entry into a Private Dwelling that Would be 

Warranted by State Laav Would be Sustained by Federal 
Courts Page 401 

C. Once Arrest is Made Police Officer May Take Prisoner Beyond 

His Jurisdiction. 

D. Arresting Officer Need Not Obey a Writ of Habeas Corpus of 

State Court, But Should Reply, Giving a Reason for Non- 
compliance. 

E. Civilian Official Who Connives at Escape is Liable to Prose- 

cution. 

F. Civilians May, Upon Request op the Military, Arrest Deserters. 

G. Right of United States Over Minor Deserter is Paramount to 

Right of Parents. 
H. If Evidence Conclusive op Intent Not to Return, Pass Does 
Not Protect From Apprehension. 

IV. EXTRADITION. 

A. If Deserter Extradited From Mexico on Other Charges Can 

Not be Held as Deserter. 

B. In Absence of International Convention Deserter Can Not be 

Arrested as Such in Mexico. 

C. No Existing Extradition Treaties With Great Britain in Case 

OF Desertion Page 402 

V. REWARD. 

A. Understanding With Civil Authorities. 

1. Appropriation acts do not nullify specific acts for apprehension oi 
deserters. 
a. Authority granted to civil officers does not replace authority 
of military officers to direct arrest by civilians. 

B. May be Paid for Delivery of Deserter. 

1. When he is charged with desertion Page 40S 

2. Not charged but shown administratively to be a deserter in fact. 

3. If convicted of absence without leave only. 

4. If tried for absence without leave only. 

5. If charge is erroneously made. 

6. Desertion established administratively. 

7. Even if after delivery, discharged on writ of habeas corpus. 

8. To a recruiting officer. 

a. If specially authorized. 

b. If recruiting officer erroneously releases him • Page 404 

9. To an Army detachment. 

10. Paid to a civilian official who received his surrender. 

11. Paid to Indian police. 

12. Paid to an immigration inspector. 

13. Paid to a constable even if after delivery at jail sheriff releases 

deserter. 

14. Paid to a civilian. 

a. Who arrests deserter on request of the military . . Page 405 

(1) Nationality of deliverer unimportant. 

b. An Indian. 

c. A Canadian detective. 

d. A scavenger at a post. 



desertion: synopsis. 395 

RE WARD— Continued . 

B. May be Paid for Delivery of Deserter — Continued. 

15. Paid to several who jointly arrest and deliver. 

a. By check payable to them jointly. 

16. Paid for a second delivery of the same deserter. 

17. Paid for delivery of escaped general prisoner. 

18. Paid from "Contingencies of the Army" for delivery; expenses 

only. 

a. Of deserter and embezzler. 

b. Of deserter delivered by police of Canada Page 406 

c. Of escaped insane soldier. 

d. Of soldier charged with other offenses. 

C. Amount of Reward is That Which is Authorized at the Date op 

Apprehension. 
1. The reward is in full for all services. 

D. Stoppage Against Deserters' Pay. 

1. Of reward upon conviction. 

a. Of desertion. 

b. Of absence without leave if sentence so directs. 

2. Stoppage of reward, of expense of apprehension, etc., and original 

payment of reward are distinct transactions Page 407 

3. Expense of apprehension and transportation may be charged 

against a con\'icted deserter. 

a. Transportation and commutation of rations of self and guard. 

b. Transportation of sergeant sent to identify deserter. 

c. Expenses incurred in arresting wrong man. 

4. Expense of retm'ning deserter from place of delivery to proper 

station not included in reward. 
a. Over shortest usually traveled route Page 408 

E. Stoppage Can Not be Made. 

1. If acquitted or conviction disapproved. 

2. If acquittal disapproved. 

3. Expense of transportation if conviction disapproved. 

4. Expense of transportation in execution of sentence. 

5. If charge removed as erroneously made. 

6. If soldier not a deserter arrested without request. 

F. Reward Not to be Paid. 

1. For partial performance only Page 409 

2. For merely giAdng notice of location of deserter. 

a. If he has reenlisted. 

(1) In the Army. 

(2) In the Navy. 

(3) In the Marine Corps. 

3. Without delivery. 

a. After apprehension released on writ of habeas corpus. 

4. If man has been dishonorably discharged. 

a. Unless by mistake he is still carried on the rolls . . Page 410 

5. For apprehension of a man discharged ^athout honor for the 

desertion. 

6. If a man has deserter's release. 

7. If statute of limitations has run. 

a. Fair remuneration for time and expense may be allowed. 

b. Exception — desertion in time of war. 



396 desertion: synopsis. 

V REWARD— Continued. 

P. Reward Not to be Paid — Continued. 

8. If deserter arrested abroad without authority. 

9. If deserter extradited on other charges Page 411 

10. If deserter surrendered. 

a. To a recruiting officer and was delivered by the police in 

whose custody he was placed. 

b. To a recruiting officer and while proceeding on Government 

transportation to a post was arrested. 

11. To commissioned officers or enlisted men. 

12. To customs officer for apprehension without request. 

13. To Idaho justice of the peace for apprehension without request. 

14. If evidence of collusion. 

15. Where no evidence of desertion Page 412 

16. For suspected naval deserter who is discovered to be Army deserter. 

17. If delivered to police on other charges. 

18. For arrest of man not charged with desertion and not a deserter in 

fact. 

19. In case of arrest of wrong man no reimbursement for damages and 

expenses incurred by the arresting officer. 

20. If deserter himself gives notice. 

a. To a policeman who arrests him. 

b. To military authorities by letter Page 41S 

VI. REENLISTMENT. 

A. Of Deserter Restored to Duty Without Trial. 

B. Policy in Handling Fraudulent Enlistment of Deserters. 

C. The Draft of a Deserter is Legal. 

D. Secretary op War May Decide Deserter's Service Has Been 

Honest and Faithful for the Purpose of Reenlistment. 
Vn. UNDER MILITARY CONTROL. 

A. Should be Taken up as a Private. 

1. Case of a first-class private, Engineer Corps, 

2. If insane (not in line of duty) when delivered should be dis- 

charged without honor. 
Vm. STATUTE OF LIMITATIONS. (See One Hundred and Third Article 

OP War.) 
IX. EVIDENCE OF. 

A. Charge is Not. 

B. Notation on Records Page 414 

C. Report op Adjutant General Containing Extracts from 

Records. 

D. Entry in Prison Report. 

E. First Sergeant's Statement That Man is a Deserter. 

F. Entry on Rolls "Dropped for Desertion." 

G. Desertion from Marine Corps. 
S. Date of Enlistment. 

I. Upon Enlistment Was Unapprehended Deserteiv 
K. Illtreatment, Poor Food, etc. 
L. Homesickness. 
M. Called to Germany for Military Duty. 

N . Restored to Duty Without Trial Page 415 

O. A Volunteer Not a Deserter After Volunteer Army Dis- 
banded. 



desertion: synopsis. 397 

X. PUNISHMENT. 

A. Sections 1996 and 1998, R. S.,UndulySevere for Time of Peace, 

B. Evidence of Previous Desertion Not Limited to Current En- 

listment. 

C. Confined in Penitentiary. 

1. Convicted of desertion only, may not be. 

2. Convicted also of other offenses also, may be. 

D. Desertion in Time of War but Trial in Time of Peace — Punish- 

ment May Not Exceed Limit Fixed in Executive Order. 
H. LESSER INCLUDED OFFENSE. 
Xn. RESTORATION TO DUTY WITHOUT TRIAL. 

A. No Legal Objection if Deserter Surrenders Page 416 

1. No legal objection if deserter fraudulently enlists. 

B. Application Should be by Company Commander. 

Xm. MAKING GOOD TIME LOST. (See Forty-eighth Article of War:) 
Xrv. FORFEITURES. 

A. Of Pay and Allowance. 

1. No service, no pay. 

2. Conviction disapproved on ground that evidence did not sustain 

charge — ^no forfeiture. 

3. Restoration to duty without trial. 

4. Discharged without honor Page 417 

5. Conviction disapproved, no reason given — question of forfeiture 

settled administratively. 

6. Acquitted — no forfeiture. 

7. Removal of charge removes liability to forfeiture. 

B. Of Rights op Citizenship and Incapacity to Hold Office. 

1. Philippine scout does not forfeit citizenship Page 418 

C. Private Money Not Forfeited. 

D. Insane Deserter Does Not Suffer Forfeiture. 

E. Deposits Forfeited. 

F. Balance in Deserter's Favor After Settlement Can Not bb 

Used to Pay Debt to Company Fund. 

XV. PARDON. 

A. Can Not Remove a Charge of Desertion. 

B. By Proclamation on Condition of Return to Service. 

1. A deserter of two offenses returned and finished one enlistment- 

pardoned Page 419 

2. Proclamation, March 11, 1865, applies to men arrested. 

3. No amnesty proclamation in force. 

C. Pardon Not Extended to Deserters at Large 

D. Restoration to Duty Without Trial is Constructive Pardon. 

E. Practice to Restore Citizenship to Convicted Deserter Whose 

Conduct in Civil Life Has Been Good. 
1. Should submit certificates from reputable citizens Page 420 

F. Soldier Convicted of Desertion but Retained in Service 

Should Apply for Pardon. 

XVI. REMOVAL OF CHARGE OF DESERTION. 

A. Secretary May Remove Charge. 

1. He may decide a deserter's service to be honest and faithful for 
the purpose of reenlistment. {See VI D ante.) 

B. By an Honorable Discharge. 

C. Because Erroneously Made. 

1. Prisoner of war. 

2. Insane soldier , Page 4il 



398 



DESERTION : SYNOPSIS. 



XVI. REMOVAL OF CHARGE OF DESERTION— Continued. 

C. Because Erroneously Made — Continued. 

3. Procedure in removing charge. 

4. Soldier on furlough dropped as deserter due to failure of mails. 

5. Soldier on pass injured and put in hospital, 
d. Soldier furloughed by mistake. 

D. Charge Removed Under Special Act of Congress. 

1. Act of March 2, 1899. 

a. Charge that was disposed of when law passed can not be 

removed. 

b. When disposed of since can not be removed Page 4'22 

c. Service must have been honest and faithful. 

d. Charges that can be removed are not limited to those made 

before May 1, 1865. 

e. After desertion, enlistment in Navy can not be held to be a 

gratuity. 

f . Not removed if deserted while under charges Page 423 

g. An enrolled man did not meet his draft but enlisted else- 

where as a volunteer — not a deserter. 

2. Act of May 17, 1886. 

a. Purpose of act to change status from that of deserter to that 
of soldier honorably discharged . 

E. Restoration to Duty Without Trial Dc^s Not Operate as an 

Acquittal to Remove Charge. 

F. Finding of Not Guilty by an Illegal Regimental Court-Martial 

Does Not Remove Charge of Desertion. 
XVII. DESERTER'S RELEASE. 

A. Intended for Men in Whose Favor One Hundred and Third 

Article of War Has Run. 

1 . After return to military control One Hundred and Third Article 
does not run Page 424 

B. A Pardoned Dishonorably Discharged Soldier Not a Subject for 

Release. 

C. Designed for Persons in Service. 

D. Not Intended for Issue to Deceased Persons. 

E. Not Intended as a Discharge from the Army. 

F. Not Given for Desertion in Time or War. 

G. Must be Prepared so as to Show That it is Not a Discharge. 
H. Procedure to Obtain Page 425 

XVIII. DESERTION IN TIME OF WAR. 

A. Desertion Before Exchange op Ratifications. 

B. During War With Foreign Enemy, Time op War at Home. 
XIX. RESPONSIBILITY FOR GOVERNMENT PROPERTY. 

A. Acquittal of Desertion Does Not Relieve from Responsibility. 
XX. OFFICER. 

A. An Officer Absconded to Canada. 

B. An Officer Went to Place Far from the Place He Was Author- 

ized to Visit. 

C. Effects of Deserted Officer. 

D. No Court Can Review Action of President in Dropping Officer 

AS A Deserter. 

E. After the President Has Dropped an Officer the Statute op 

Limitations Does Not Run Page 426 

F. Not Entitled to Trial Under Section 1230, Revised Statutes. 



DESEETION I. 399 

XXI. CIVIL EMPLOYEES. (See Civil Employees.) 
A. Can Not be Deserters. 
XXII. RUNNING AWAY OF RECRUIT. 

A. Liable tor Embezzlement in Violation of Section 5439, R. S. 

I. The offense of desertion is committed by an ojfficer or enlisted 
man who absents himself without authority from the military serv- 
ice with the intent not to return thereto.^ The offense becomes 
complete when the intent not to" return has been fully formed, and 
the officer or enlisted man has committed an overt act looking toward 
his separation from the military service. C. 15257, May 9, 1910; 
9787, Feb. 7, 1901. • 

I. A. Both elements of desertion — i. e., the^c^ of the unauthorized 
voluntary withdrawal and the intent permanently to abandon the 
service — must be proved. The intent may be inferred, not from the 
fact of absenting alone, but from the circumstances attending this 
fact, and the duration of the absence. An unauthorized absence of 
a few hours may be sufficient evidence of such intent and thus proof 
of a desertion ^ (C. 10562, Mar. 13, 1902), while an absence for a con- 
siderable interval, unattended by circumstances indicating a pur- 
pose to separate premanently from the service, or to dissolve the 
pending engagement of the soldier, may be proof simply of absence 
without leave. Each case must be governed by its own peculiar 
facts, and no general rule on the subject can be laid down. R. 8, 109, 
Mar. 14, 1864; 26, 346, Jan. 6, 1868; 33, 123, Juhj 1, 1872. 

I B. Desertion does not necessarily include the offense of absence 
from station. Thus held that if at one of our large stations an enlisted 
man should leave his company and barracks and proceed to another 
barracks at the same station where men are being enlisted for foreign 
service, and there enlist himself without a discharge from his com- 
pany, he must be held to be a deserter, even though technically he 
has not committed the offense of absence from his post or station 
without leave. C. 24722, Apr. 5, 1909. 

I C 1 . The nature of the offense of desertion is well illustrated in 
cases of escape. The mere fact that a soldier, while awaiting trial or 
sentence or while under sentence (and not discharged from the serv- 
ice) escapes from his confinement is not proof of a desertion on his 
part, since he may have had in view some minor object, such as the 
procuring of liquor, etc.^ But an escape, followed by a considerable 
absence, especially if the soldier is obliged to be forcibly apprehended, 
is strong presumptive evidence of the existence of the intent necessary 
to constitute the crime. So, though the absence involved may be com- 
paratively brief, the circumstances accompanying the escape or 
attending the apprehension, may be such as to justify an equally 

^ See sec. 546, Digest of Decisions of 2d Comp., vol. 3. 

2 See cir. 66, War Department, series 1908. 

^ See a case of this nature (an escaping in order to obtain liquor) in G. 0. 32, Dept. 
of the South, 1873; and compare the case in G. O. 87, id., 1872, in which a con- 
viction of desertion is disapproved on the ground that the evidence showed "merely 
an escape from the guardhouse without intention to leave the service or the vicinity 
of the post." And see in this connection Samuel, 324, where to be "discovered, 
after a short absence, "in the pursuit of some accidental temporary object, though 
perhaps otherwise illicit," is instanced as not indicating an intent by the offender 

to sever himself from the service. ' ' 



400 DESERTION I C 2. 

strong presumption. An escape, with intent not only to evade con- 
finement, but to quit the service, while the party is held awaiting 
proceedings for desertion, is of course a second or additional deser- 
tion. R. 31, 282, Apr., 1871; 35, 626, Oct., 1874; 37, 291, 597, Jan. 
and June, 1876; 38, 43, Apr., 1876; 4I, 119, Feh., 1878; 53, 35, 
Sept., 1886. Of course an escape from legal military custody is 
always an offense, and the soldier who has escaped may (where his 
act does not amount to desertion) be brought to trial for such offense 
as "conduct to the prejudice of good order and military discipline." 
R. 10, 574, Nov., I864. It need hardly be added that an escape from 
imprisonment, by a military convict can not constitute a desertion, or 
other offense, the party at the time of escape being no longer in the 
mihtary service.^ R. 35, 626, Oct., 1874; C. 16395, May 26, 1904. 

Undoubtedly, in the great majority of cases, escape is desertion.^ 
a 12785, Jan. 27, 1902. 

I C 2. Enlisting in the enemy's army by a prisoner of war is deser- 
tion unless submitted to as a last resort to save life or to escape ex- 
treme suffering or to obtain freedom. Thus held in a case of a United 
States soldier who entered the service of the enemy from Anderson- 
ville, Ga., in the Civil War, that the burden of proof was on him to 
establish that he resorted to such enlistment with design of effecting 
his escape and rejoining his own army; and that his abandoning such 
enlistment and coming within our lines at the first opportunity was 
material evidence of such a design. P. 43, 144, Oct., 1890; 51, 100, 
Dec, 1891. 

I D. A soldier during the Civil War j)ermitted himself to be 
drummed out of the service pursuant to the illegal sentence of a court 
composed of enlisted men. Held that he was technically a deserter. 
a 2213, May 9, 1896; 16113, Apr. I4, 1904. 

1 E. Held that misbehavior before the enemy may be evidence of 
desertion, but that it is not an essential element of it. C. 9787, Feb. 
8, 1901. 

II A. A deserter at large obtained employment in the Quarter- 
master's Department as a teamster by representing himself to be a 
citizen. It was discovered that he was a deserter at large. Held 
that he was not competent to enter into contractual relations of any 
sort with the United States, and this is especially true when his under- 
taking was in direct conflict with the terms of his enlistment contract, 
which was in full force at the date of his employment, and that as his 
employment as a teamster was obtained by fraudulent concealment 
of the fact that he was a deserter no benefit can accrue under his 
employment and he is not entitled to pay for services rendered in that 
capacity. C. I4OI7, Jan. 22, 1903. 

III A. Peace officers generally are authorized by law to arrest 
deserters and to restore them to the proper military authority. Held 
that if in making such arrest resistance is encountered, the officer has 
the right to use such force as is necessary to overcome such resistance, 
but no more. C. 23930, Oct. 3, 1910. 

* But see now sec. 5 of the summary court act, approved June 18, 1898 (30 Stat., 
484), which subjects general prisoners to punishment for violating the Articles of War. 

2 See cases published in G. C. M. 0. 14, H. Q. A., 1880; do. 40, 44, id., 1882; do. 31, 
id., 1884; do. 279, Dept. of the East, 1885; do. 11, Dept. of the Mo., 1885; do. 18, 
Dept. of Cal., 1877; do. 125, Dept. of the Dakota, 1882; do. 54, id., 1885; do. 5, Dept, 
of the Platte, 1873; do. 35, Dept. of Texas, 1875; do. 54. id.. 1885. 



DBSERTION III B. 401 

III B. On the question of whether or not a forcible entry of a 
dwelling can be made by a peace officer to arrest a deserter, held that 
any entry which would be warranted by the law of a State would in all 
probabihty be sustained by the Federal courts. C. 23930, Oct. 3, 1908; 
395, Oct., 1894. 

Ill C. Certain peace officers designated by the statutes are empow- 
ered to make arrests in their own jurisdictions. Held that once the 
arrest is accomplished; all question of locality in so far as the delivery 
of the prisoner is concerned falls — and the prisoner may be delivered 
at any designated point regardless of State or other jurisdictional 
Unes.* C. 23930, Oct. 9, 1908. 

Ill D. In view of the requirements of section 2 of the act of June 
18, 1898 (30 Stat. 484), authorizing civil officers to arrest deserters, 
etc., lield that the officer making the arrest, in the event of a writ of 
habeas corpus being issued by a State court, should make return to 
the court justifying his custody in the operation of that act. G. 
17327, May 5, 1906; 23930, Oct. 9, 1908. 

Ill E. Where a civil official, having made an arrest of a deserter, 
concealed him from the military authorities and afterwards permitted 
or connived at his escape, recommended that the Attorney General be 
requested to instruct the proper United States district attorney to 
initiate proceedings under section 5455, R. S. R. 1^1, 481, Dec, 1878; 
C. 561, Oct. 26, 1894. 

Ill F. The statute conferring authority upon civil officers to appre- 
hend and deliver deserters should not be construed as taking away 
the authority for their apprehension by a citizen under an order or 
direction of a military officer,^ but the legislation should be treated as 
providing an additional means of securing the arrest of deserters by 
conferring authority upon civil officers to apprehend them without 
military orders — leaving the former method still legal. Under this 
view, the arrest of a deserter by a citizen is legal if made pursuant to 
the order or request of proper authority, but not otherwise. C. 
17327-A, July 20, 1909. 

III G. The right of the United States to arrest and bring to trial a 
deserter is paramount to any right of control over him by a parent on 
the ground of his minoritv." P. 58, 287, Mar., 1893; C. 1967, Jan., 
1896; 2872, Jan. 14, 1897) 4167, May 23, 1898; 4244, June 2, 1898; 
12296, Mar. 25, 1902; 19266, Feb. 16, 1906; 2561, Aug. 28, 1906; 
2870, Jan. 14, 1907. 

IV A. A soldier who had been extradited from Mexico solely on a 
charge of theft, held not liable to trial as a deserter; the principle 
that a person extradited on account of a certain alleged offense is 
exempt from trial on any other criminal offense * being deemed appli- 
cable where the other offense is a military one. P. 37, 495, and 38, 
167, Jan., 1890; 49, 62, Sept., 1891; C. 5361, Oct. 2, 1911. 

IV B. A deserter from our Army can not, in the absence of any 
international convention allowing it, legally be arrested as such in 
Mexico and brought thence into Texas. P. 39, ^55, Mar., 1890. 

^ See Cir. 87, War Department, Oct. 23, 1908, which publishes the above opinion. 

2 See Kurtz v. Moffitt (115 U. S., 505). 

3 In re Cosenow, 37 Fed. Rep., 668; In re Kaufman, 41 id., 876. And compare In re 
Grimley, 137 U. S., 147, and In re Morrissey, id., 157. 

* U. S. r. Rauscher, 119 U. S., 407. 

93673°— 17 26 



402 ■ DESERTION IV 0. 

IV C. The existing extradition treaties with Great Britain con- 
tain no provision for the extradition of a deserter or for the surrender 
of an escaped convict. P. 63, U6, May, 1892; C. 15491, Mar. SO, 
1909. * , 

V A. The United States has entered into an understanding with 
the civil authorites of the country at large by which, if the latter 
apprehend a deserter and surrender him at a military post, they will 
be rewarded.^ This law is not coupled Avith the requirement that 
the reward shall be contingent upon the conviction before a court- 
martial of the soldier surrendered, nor upon any other contingency, 
but simply demands that where there is a good, honest belief on the 
part of the person making the arrest, and this belief is founded on 
sufficient evidence to warrant the arrest being made, there should be 
no quibbling as to technical reasons for the failure on the part of the 
United States to meet its obligation. With this should not be con- 
founded the question of whether the $50 paid as a reward shall be 
charged to the United States or charged to the deserter. C. 17 327- A, 
Aug. 16, 1909, Oct. 16, 1910, Oct. IS, 1910, and Oct. 31, 1910. 

V A 1. The clause in successive acts of appropriation for the sup- 
port of the Army authorizing the payment or rewards to civil officers 
or citizens does not nullify the requirements of permanent legislation 
as found in section 6, act of June 18, 1898 (30 Stat. 484), and in the 
act of June 16, 1890 (26 Stat. 157). _ C. 17327, Jan. 2, 1906. 

V A 1 a. Held, that the statutes which confer authority upon civil 
officers to apprehend and deliver deserters should not be construed as 
taking away the authority for their apprehension under an order or 
direction of a military officer, and that these statutes should be 
treated as providing additional means of securing the arrest of 
deserters by conferring authority upon civil officers to apprehend them 
without military order, leaving the former method still legal. ^ C. 
17327, Jan. 7, 1905; 18677, Nov. 7, 1905. 

V B. The law and the regulations evidently contemplate the appre- 
hension and dehvery to the military authorities of deserters who are 
at large, viz, are fugitives from mifitary custody. C. 16201, Apr. 26, 
1904; 17327, Sept. 21, 1908. 

1 The laws under which the reward is paid are as follows: Sec. 3, act of June 16, 
1890 (26 Stat. 158): "That the United States marshals and their deputies, sheriffs, and 
the deputies, constables, and police officers of towns and cities are hereby authorized 
to apprehend, arrest, and receive the surrender of any deserter from the Army for the 
purpose of delivering him to anv person in the military service authorized to receive 
him." And eee. 2, act of Oct. 1, 1890 (26 Stat. 648): "That it shall be lawful for any 
civil officer having authority under the laws of the tlnited States or of any State, Ter- 
ritory, or District, to arrest offenders, to summarily arrest a deserter from the military 
service of the United States and deliver him into the custody of the military authority 
of the General Government." Sec. 6, act of June 18, 1898 (30 Stat. 484): "That it 
shall be lawful for any civil officer having authority under the laws of the United 
States, or of any State, Territory, or District, to arrest offenders, to summarily arrest 
a deserter fi-om the military service of the United States and deliver him into the cus- 
tody of the military authority of the General Government. " And the item that runs 
in the annual appropriation act reads as follows: * * * "for the apprehension, 
securing, and delivering of deserters, including escaped military prisoners, and the 
expenses incident to their pursuit, and no greater sum than fifty dollars for each de 
serter or escaped military prisoner shall, in the discretion of the Secretary of War, be 
paid to any civil officer or citizen for such services and expenses; * * * Act of 
Mar. 3, 1911 (36 Stat. 1048). 

2 See acts of June 16, 1890 (26 Stat. 157), and June 18, 1898 (30 Stat. 484), and 
Apr. 23, 1904 (33 Stat. 269). 



I 



DESERTION V B 1. 403 

V B 1. Held that as the word "deserters" as used in the appro- 
priation act wliich makes provision for the apprehension and delivery 
of deserters has been construed to inckide soldiers charged with 
desertion, that the word is not limited to soldiers who may subse- 
quently be convicted of that offense, and that the reward can legally 
be paid for the apprehension and delivery of the soldier charged with 
desertion, although he may subsequently be discharged without trial. 
G. 8273, May 24, 1900; 11025, Sept. 4, 1901; 11239, Sept. 20, 1901; 
15284, Sept. 24, 1903; 17327, Sept. 29, 1911. 

V B 2, A reward may legally be paid either where the soldier has 
been charged with desertion, or, though not charged with desertion, 
it can be determined as an administrative question that the soldier 
was a deserter in fact. Where a soldier has not been charged mth 
desertion, a person apprehending him as such, in order to claim the 
reward, must be able to show that he was a deserter in fact.^ 0. 17327, 
Apr. 29, 1907. 

V B 3. A police officer arrested and delivered a man who was 
charged with desertion. Held, that the reward was properly paid 
to him even though subsequently the man was convicted of absence 
without leave only. G. 10190, Apr. 10, 1901; 14557, Apr. 29, 1903; 
18892, Dec. 5, 1905; 17327, Feb. 23, 1906, Nov. 6, 1907, and July 13, 
1908. 

V B 4. When a reward is offered for a soldier who is claimed to be 
absent in desertion and who is subsequently apprehended and tried 
for absence without leave; held, that the officer effecting the appre- 
hension is entitled to the payment of the reward as, for purposes of 
apprehension, the absentee was a deserter in fact. G. 12986, July 21, 
1902; 6432, Dec. 5, 1898. 

V B 5. A deserter was arrested and delivered. Held, that the 
reward was properly paid even though the charge was subsequently 
set aside as ha\dng been erroneously made. G. 17327, Nov. 28, 1908. 

V B 6. Held, that in order to entitle an officer to the reward it is 
not necessary that the fact of desertion should be found by a court- 
martial, but that it is sufficient if the Secretary of War, on the facts 
presented, decides that the soldier apprehended and delivered was 
actually a deserter. This is a question of civil liability and a court- 
martial is organized to enforce military discipline and not to deter- 
mine such questions, but its verdict may be made the basis of a 
determination of such questions by the department. G. 11285, 
Sept. 25, 1901, and Mar. 30, 1903; 11510, Nov. I4, 1901; 18524, Sept. 
8, 1905; 17327 B, Jan. 13, 1911. 

V B 7. The fact that a deserter was discharged after apprehension 
and delivery on habeas corpus proceedings on the ground of minority 
at enlistment, is not ground for refusal of payment of reward for his 
apprehension. G. 3717, Dec. 8, 1897; 13908] Jan. 15, 1903; 19635, 
May 3, 1906. 

V B 8 a. Claim was made for reward for the apprehension and 
deJiveiy to a recruiting officer of a deserter.^ Held, that while a 
subordmate officer would not be authorized to pay the reward unless 
delivery was made as required by the regulation, the Secretaiy of 
War could legally waive strict compliance therewith, as the act of 
appropriation does not specify the place of delivery, and recommended 

' VI Comp. Dec, 743. 

2 See par. 123, A. R., Ed. 1910. 



404 DESERTION V B 8 b. 

that the authorized reward be paid less the expense incurred by the 
United States in sending the deserter to the nearest mihtary post. 
0. 17327, June 10, 1907, Oct. 29, 1907, Feb. 21, 1908, July 28, 1908, 
Dec. 16, 1908, and Feb. 20, 1909. 

V B 8 b. Held that where a deserter was deUvered to a recruiting 
officer who, on erroneous information, released him, the person making 
the delivery was none the less entitled to the reward, if the delivery 
was made in accordance with the regulations. C. 17327, Feb. 25, 1907. 

V B 9. Where a recruiting officer was informed by the deserter's 
company commander of the place where the deserter could be found, 
and employed a policeman to go with him to make the arrest, lield, 
that as the preliminary work of locating the deserter was done by the 
military authorities, and the only part performed by the claimant 
was the actual arrest, con&iement in the city, and subsequent deliver}^ 
to a guard sent from the mihtary post, the policeman was entitled to 
a part of the reward only, to be determined under the law and regu- 
lation, by the Secretary of War; and that $25 would be ample to 
cover the portion of the services performed by the claimant including 
his expenses.^ C. 17327, Jan. 20, 1908, and Feb. 18, 1908, and May 1, 
1908. 

V B 10. Where a deserter was not arrested by, but surrendered 
himself to, the civil official, who in good faith took him into custody 
and securely held and duly deHvered him, lield that the reward was 
properly payable.^ R. 52, 293, June, 1887; P. 58, 134, Feb., 1893; C. 
1290, Apr. 23, 1895; 9196, Oct. 30, 1900; 16030, Mar. 16, 1904; 16116, 
Apr. 1, 1904; 1^409, Aug. 11, 1905; 18727, Oct. 17, 1905; 17327, 
Nov. 28, 1908, and Jan. 27, 1910. 

V B 1 1 . Held that a member of the Indian poUce, estabhshed 
under the regulations of the Indian Office, was a civil officer having 
authority to arrest offenders, and was entitled to the reward for the 
arrest of a deserter.^ C. 346, Oct. 4, 1894. 

V B 12. An immigration inspector is vested, by the act of May 6, 
1882 (22 Stat., 58), with authority to "arrest offenders,'' within the 
meaning of section 6 of the act of June 18, 1898 (30 Stat. 484). Held, 
in a particular case, that such an inspector was entitled to receive a 
reward for the delivery of a deserter. C. 17327, Jan. 2, 1906. 

V B 13. A constable notified The Adjutant General of the where- 
abouts of a deserter. The Adjutant General advised the constable 
that delivery of the deserter at a designated place would be accepted, 
and that a detachment would be sent to the place for the purpose of 
receiving the deserter. The constable arrested the man and held him 
in custody at the designated place. The sheriff, however, acting on 
the advice of the attorney of the Commonwealth, released the deserter, 
and, as a result, delivery could not be made when the detachment 
arrived. Held that as the constable had done all that was required of 
him, the subsequent release of the deserter by the unlawful act of ihe 
sheriff should not be allowed to deprive the constable of his right to 
the reward, and that he was entitled to the reward. C. 561, Mar. 6, 
1911. 

1 In this case the Assistant Comptroller held that the payment of the account was 
authorized . 

2 Circ. No. 1, A. G. O., series 1886. 

3 See Circ. 12, A. G. O., 1894, revoking par. 1, Circ. 20 of 1893. 



DESERTION V B 14 a. 405 

V B 14 a. Held that prior to June 16, 1890, a police officer or pri- 
vate citizen had no authority as such to arrest deserters without an 
order or request of a military officer,* but that the acts of »June 16, 
1890 (26 Stat. 157), and June 18, 1898 (30 Stat. 484), conferring on 
officers authority to arrest deserters, should not be regarded as taking 
away the right of a civilian or citizen to arrest a deserter pursuant to 
the order or request of a mihtary officer.^ Held further that the 
reward could legally be paid to a citizen or civilian making an arrest 
under such order or request. R. 33, 4I4, Oct. 16, 1872; P. 27, Sept 
5, 1888; C. 12376, Apr. 12, 1902; 17327, Jan., 7 1905, Aug. 2, 1905, 
Sept. 6, 1905, Nov. 24, 1905, and July 20, 1909; 17327 A, Dec. 4, 1908. 

VB 14 (a) (1). The reward for the apprehension of a deserter is 
payable to any civil officer or citizen who delivers such deserter into 
military custody, independently of the nationality of the person 
making the apprehension and delivery. C. 17 327 -A, Dec. 4, 1908. 

V B 14 b. Held that the term ''citizen" as used in the appropria- 
tion act which carries a reward for the apprehension of deserters is 
synonymous with the word "civilian" and is intended to describe a 
person who is not in the military service, and that the reward could 
therefore legally be paid to an Indian making such arrest pursuant 
to request of military authority. C. 17327, Oct. 23, 1905. 

V B 14 c. Similarly held that a reward could be paid to a Canadian 
detective. C. 17327, Dec. 4, 1908. 

V B 14 d. As the current appropriation act provides "Reward 
shall be paid to any officer or citizen," held that, as citizen is here used 
synonymously with civilian, where there is no fraud or collusion it 
may be paid to a scavenger at a military post, notwithstanding the 
fact that he is there employed. C. 17327, Aug. 29, 1905. 

V B 15. An offer of reward has been complied with hj the joint 
efforts of several persons. Held that they are jointly entitled to the 
reward.^ R. 20, Mar., 1866. 

V B 1 5 (a) . A deserter was apprehended and delivered by two 
men neither one of whom performed the entire service for which 
alone the reward is paj^able. Held that the check in payment of the 
reward should be drawn in favor of both men and the division of the 
reward left to them. C. 12026, Feb. 6, 1902; 17538, Feb. I4, 1905; 
18677, Oct. J and Nov. 8, 1905. 

V B 16. A deserter was placed in confinement and a reward paid 
for his apprehension. Afterwards he escaped from confinement. 
Held that a reward could be paid for his second apprehension, as it 
was a second desertion. C. 8654, July 25, 1900; 14781, June 10, 
1903. 

V B 17. Held that a reward may be paid for the apprehension and 
delivery of an escaped general prisoner. C. 15891, Feb. 11, 1904; 
7651, Feb. 7, 1900. 

V B 18 a. A deserter at large was also charged with embezzle- 
ment of a large amount of Government funds. Held that the fact 
that he was a deserter and that the statutory reward would be paid 

1 Kurtz V. Moffitt, 115 U. S., 505. See Hickey v. Huse (56 Me., 493), in which it 
was held that provost marshals had the right to arrest deserters and that no warrant was 
necessary. 

* See Hutchins v. Van Bokkelem (34 Me., 126), in which it was held that a military 
officer can confine a deserter in a county jail, although the jailer is under no obliga- 
tion to receive him. 

3 Cyc. 1751-1756. 



406 DESERTION V B 18 b. 

for his apprehension as such would not prechide the Secretary of War 
from offering an adequate reward for his apprehension as an embez- 
zler ^ to be paid from the appropriation "Contingencies of the Army." ^ 
C. 17327, Aug. 25, 1910. 

V B 18 b. The superintendent of mounted police of British Yukon 
Territory apprehended a deserter from the American Army and deliv- 
ered him at Camp Skagway, under pledge from the commanding officer 
of that camp to pay the costs in addition to the prescribed reward. 
Held, that upon approval by the Secretary of War $20 could be paid 
from appropriation for "Incidental expenses, Q. M. Department" 
and the balance from appropriation ''Contingencies of the Army, 
1904." 3 C. 16578, July 18, 1904. 

V B 18 c. A soldier left his post and was subsequently appre- 
hended and delivered to the military authorities as a deserter by a civil 
officer. It was supposed that the soldier was a deserter, but upon his 
return he was adjudged insane. Held that the statutory reward could 
not be legally paid, but advised that the expenses which the officer 
had incurred be paid him from the appropriation for the contingent 
expenses of the Army; also that a reasonable amount in addition be 
allowed him for his services and made a part of the expense of caring 
for and taking the man to the asylum. C. I4O7, June, 1895; 13776, 
Dec. 9, 1902; 21117, Feb. 25, 1907. 

V B 18 d. Request was made for the apprehension of a man on 
account of other offenses than desertion and there is no evidence to 
indicate that he was a deserter in fact. Held that the expenses of the 
officer or citizen making the arrest, together with a reasonable com- 
pensation for his time, may be paid from the appropriation "Con- 
tingencies of the Army' ' since the service w^as actually rendered and 
the expense incurred upon the request of the military authorities, 
a 17327, Apr. 29, 1907, Mar. 25 and Ajw. 8, 1908, Jan. 8, 1909, 
Nov. 23 and Dec. 10, 1910. 

V C, After a soldier had deserted the amount of reward authorized 
by law for the apprehension of deserters was changed. Held that the 
reward authorized for his apprehension and dehvery was the reward 
authorized at the date of his apprehension. C. 99A, Feb. 11, 1895; 
1076, Feb. 28,-1895. 

VC 1. The reward shall be in full for all services and expenses. 
C. 18677, Oct. 7, 1905; 17327-A, Dec. 29, 1908; 17327-B, May 29, 1911. 

V D 1 a. The legal liability imposed upon the soldier by Army 
Regulations, to have the amount of the reward stopped against his 
pay, is quite independent of the punishment which may be imposed 
upon him by sentence of court-martial on conviction of the desertion. 
Such stoppage need not be directed in the sentence; courts-martial 
indeed have sometimes assumed to impose it, like an ordinary for- 
feiture of pay, but its insertion in the sentence adds nothing to its 
legal effect." R. 12, 326, Feb., 1865. 

V D 1 b. Where a soldier, for whose apprehension as a supposed 
deserter the legal reward has been paid, is subsequently brought to 
trial upon a charge of desertion and is found guilty not of desertion 
but only of the lesser and distinct offense of absence without leave, he 

1 See XVI Comp. Dec, 132, Sept. 1, 1909. 

2 See XI Comp. Dec, 124, Sept. 3, 1904, and XVI Comp. Dec, 132, Sept. 1, 1909. 

3 XI Comp. Dec, 124, dated Sept. 3, 1904. 
* See par. 127, A. R., ed. 1910. 



DESERTION V D 2. 407 

clearly can not legall}^ be held liable for the reward by a stoppage of 
the amount against nis pay * unless indeed the sentence of the court 
expressly sto^s the amount.^ R. 26, 347, July, 1868; 27, 255 and 306, 
Oct., 1868; 31, 1^68, June, 1871; 34, 533 and 590, Nov., 1873; 42, 315, 
June, 1879; 43, 222, Feb., 1880; 49, 150, Sept. 1891; C. 6036, June 3, 
1893; 11708, July 1, 1902; 12772, July 3, 1902; 13080, Aug. 8, 1902. 

V D 2. The right of a ''civil officer or citizen" to the reward for 
the apprehension and delivery of a soldier charged with desertion 
accrues when the absentee has been delivered into proper military 
custody and, where no fraud is alleged, no portion of the sum so 
paid can be recovered from a bona fide payee. 

But the original payment of the reward, which is, in its essential 
elements, a contractual undertaking, and a subsequent stoppage of 
all or part of the expenses of apprehension, etc., against a soldier are 
independent transactions; the determination of the stoppage to be 
made having no necessary connection with the payment of the reward 
which, in a majority of cases, is a completed transaction when the 
matter of stoppage is taken up with a view to reimburse the United 
States for the expenses attendant upon the apprehension of a de- 
serter and his return, in a proper case, to the station of his company. 
C.17327-A,Mar.22,1910. 

V D 3. A soldier was tried for desertion, convicted, and sen- 
tenced, inter alia, to forfeit the cost of his apprehension and transpor- 
tation. The reviewing authority did not approve that part of the 
sentence. Held that such a provision should not have been incorpo- 
rated into the sentence, as the obligation to pay the cost of the appre- 
hension and transportation of a deserter does not depend upon incor- 
poration into a sentence to give it life.^ C. 5743, Jan. 31, 1899. 

V D 3 a. Paragraph 127, Army Regulations 1910, provides that "a 
soldier convicted by a court-martial of absence without leave will be 
charged with the expense incurred in transporting him to his proper 
station." Held that this authorizes a stoppage for transportation and 
commutation of rations for himself and the guard sent after him. C. 
6068, Mar., 1899; 6375, May, 1899; 7180, Oct., 1899; 9177, Oct., 1900: 
19688, May 11 and 29, 1906; 17847, Apr. 19, 1905, Sept. 2, 1908, and 
June 7,1911. 

V D 3 b. Where a sergeant was sent to identify a deserter, sup- 
posed to be serving under an assumed name in another organization, 
with a view to the latter's apprehension, held that the sergeant was 
not a "witness" (i. e., at the trial) withinthemeaningof paragraph 127, 
Army Regulations 1910, and that therefore the cost of his trans- 
portation was, under said paragraph, a proper charge against the 
deserter as expenses paid for apprehension. C. 3556, Oct., 1897;- 
17330, Jan. 4, 1905. 

V D 3 c. Expenses incurred by enlisted men in the pursuit of 
a particular deserter, and therefore on account of his desertion, may 
properly be charged against him under paragraph 127, Army Regula- 
tions 1910, notwithstanding the fact that the person apprehended as 
such deserter proved to be the wrong man, C. 3185, May 5, 1897; 
12168, Mar. 10, 1902; 17330, Jan. 4, 1905. 

V D 4. A civil officer arrested a deserter and turned him over to 
a detachment that was sent in pursuit of him. Held that he was 

' This was concurred in by the Attorney General in 16 Op., 474. 
2 See pars. 127 and 128, A. R., ed. 1910. 
» See par. 127, A. R., ed. 1910. 



408 DESERTION V D 4 a. 

entitled to the reward. Held, further, that the expense of transporta- 
tion of the deserter from the place of delivery to his station or the 
place of trial is a distinct charge not included in the reward ^ which 
will be set against his pay upon conviction of desertion. C. 3405, 
July 29, 1897; 17847, June 7, 1911. 

V D 4 a. The requirement of regulations (par. 127, A. R. 1910), 
that a deserter shall be charged with the cost of returning him to his 
station, contemplates travel from the place of apprehension or of de- 
livery to military authority to his proper station, and such journey 
should be made by the shortest usually traveled route. Where a 
deserter was sent to a place not by such shortest route, held that the 
cost of such a journey is not that contemplated in the regulation, and 
its apportionment should be determined by the circumstances of the 
case. C. 17847, Sept. 2, 1908. 

V E 1. Where a soldier, charged with desertion, is acquitted, or 
where, if convicted, his conviction is disapproved by the competent 
reviewing authority, he can not legally be made liable for the amount 
of a reward paid or payable for his arrest as a deserter, since in such 
cases he is not a deserter in law. R. 26, 347, July, 1868; 30, 4'^< 
Sept., 1869; 0. 9528, Jan. 3, 1901; 12002, Feb. 1, 1902; 17768, Apr. 
25, June 7, 1905. 

V E 2. A soldier was acquitted of the charge of desertion and the 
acquittal was disapproved by the reviewing authority. Held, that 
he can not legally be made liable for the amount of a reward payable 
for his arrest and delivery, since in such cases he is not a deserter in 
law. P. 36, 259, Nov., 1889; 0. 17768, Apr. 25 and June 7, 1905. 

V E 3. A deserter is not chargeable with the expenses of transpor- 
tation of himself and guard ^ if his conviction has been duly disap- 
proved; such disapproval being tantamount to an acquittal.^ R. 50, 
105, Mar., 1886; C. 2121, Mar., 1896; 9540, Jan. 3, 1901; 12002, 
Feb. 1, 1902; 12168, Mar. 10, 1902; 12375, Apr. 23, 1902; 17335, 
Jan. 4, 1905; 17768, Apr. 1 and 25, and June 17, 1905. 

V E 4. The expense of the transportation of a convicted deserter, 
incurred in the course of the execution of his sentence, is not charge- 
able against the deserter under par. 127, A. R., 1910, but must be 
borne by the Unit'ed States. P. 52, 21, Feb., 1892. 

V E 5. The stoppage against the pay of a soldier of the amount 
due as a reward for his apprehension is authorized by regulations 
(a) upon conviction of desertion (par. 125 of 1905, 126 of 1908, 127 
of 1910); (b) upon restoration to duty without trial, the desertion 
being admitted (pars. 125-130 of 1905, 126-130 of 1908, 127 to 131 of 
1910); and (c) upon being brought to trial for desertion and con- 
victed of absence without leave, if the sentence direct the stoppage 
(par. 126 of 1905, 127 of 1908, 128 of 1910). Held, where the charge 
was dropped as having been erroneously made, although no formal 
order was issued, that the stoppage should be removed as unauthor- 
ized by regulations; but that the soldier should have been brought 
to trial for the desertion, and if convicted of absence without leave, 
the facts would have justified the court in directing the stoppage. 
C. 17327, July 18, 1907. 

V E 6. Where a soldier was arrested by a peace officer in the mis- 
taken belief that he was a deserter, and expenses were incurred for 

' This is incorporated in par. 127, A. R., ed. 1910. 

2 See par. 127, A. R., ed. 1910. 

3 See 26 Op. Atty. Gen., 239. 



DESERTION V F 1. 409 

his support without the request of the mihtary authority; lield that 
such expenses can not lawfully be stopped against the soldier's pay. 
C' 19688, May 29, 1906. 

V F 1. Under the law of contracts the offer of a reward is an offer 
of a promise for an act and becomes binding upon substantial per- 
formance of the act. Held that a part performance only gives no 
claim for compensation. ^ R. 20, Mar., 1866; 17327 A, Bee. 17, 1908. 

V F 2 a (1). No reward will be paid where the deserter, at the time 
of arrest, "is serving in some other branch of the Army," etc.^ Thus 
held that the reward was not payable for the arrest of a deserter from 
the Cavalry, who, subsequent to his desertion, had enlisted in an 
Infantry regiment in which he was serving at the date of the arrest. 
P. 34, 298, Aug., 1889: 65, 236, June, 1894. O. 16201, Apr. 26, 
1904; 18694, Oct. 10, 1905; 18428, Aug. 14, 1905. 

V F 2 a (2). Held that in the case of information furnished without 
request by a detective agency to the effect that a deserter from the 
Army was serving on board a naval vessel, no reward could be paid 
and no allowance could be made to the person furnishing the infor- 
mation for compensation for time consumed and expenses incurred 
in the search for the deserter. C. 17327, May 6, 1907, arid June 3, 
1907. 

V F 2 a (3) . A detective gave information that a deserter from the 
Army was serving as an enlisted man in the Marine Corps, stating 
that he could not arrest him without an order from the Secretary of 
the Navy or of War, and requesting that he be paid the reward of $50. 
Held, that the deserter had contracted a new obligation resulting in a 
new status, which is not void but voidable only, and that a civil 
officer can not lawfully take him out of such service and deliver him 
to be punished for his previous desertion. Held, further, that the 
reward could not be paid. C. 18694, Oct. 11, 1905. 

V F 3. Held, that the reward was not due merely on the apprehen- 
sion of a deserter, but that there must also be a delivery as prescribed 
by the regulation "to an officer of the Army at the most convenient 
post or recruiting station." R. 28, 529, Apr., 1869. 0. 15142, Sept. 
18, 1903; 17327, Feb. 25, 1907, Apr. 5, 1909, and May 13, 1909. 

V F 3 a. A police officer arrested a man, took him to a recruiting 
station, and in compliance with the recruiting officer's request 
started to lock him in the police station, but before that was accom- 
plished the man was released by a State court on a writ of habeas 
corpus on the ground that he was illegally held, having enlisted as a 
minor without the consent of his parents. Held, that the deserter 
was not delivered to the military authorities within the meaning of 
the law and regulations, providing for a reward, and that the police 
officer was not entitled to the reward. Held, further, that as the 
State court was without jurisdiction to release the man there was no 
reason why he might not be arrested again on account of the deser- 
tion. C. 13958, Jan. 15, 1903. 

V F 4. A man was apprehended as a suspected deserter. It was 
then discovered that subsequent to the desertion in question he 
had been dishonorably discharged for another and subsequent deser- 
tion. Held, that as the dishonorable discharge operated as a complete 

1 Anson on Contracts, 21; 34 Cyc. 1731-43; Wald's Pollock on Contracts, 3d edition, 
by WilliSton, pp. 13 and 14. 

2 See par. 121, A. R., ed. 1910. 



410 DESERTION V F 4 a. 

expulsion from the Army that he Avas no longer subject to military 
jurisdiction and therefore was not a deserter within the meaning of 
the statute and regulation and that no reward could be paid for his 
apprehension and delivery. P. 63, 415, February, 1894; O. 17327, 
Feb. 26, 1907, July 28, Oct. 6, and Nov. 2, 1908. 

V F 4 a. A soldier was dishonorably discharged on account of 
fraudulent enlistment. By mistake, however, he was not dropped 
from the rolls of his company upon which he was carried as a deserter 
at. large, and while so carried he was apprehended as a deserter. 
Held, that although he had been completely expelled from the 
Army and was a civilian and no longer amenable to trial by general 
court-martial that he should be regarded technically as charged 
with desertion due to the mistake on the rolls, and that therefore a 
reward could legally be paid for his apprehension and delivery. 
C. 17327, Dec. 5,1908. 

V F 5. A soldier was discharged without honor on account of 
desertion. He was later apprehended for that desertion. Held, that 
being a civilian he was not a deserter and that neither reward nor 
expenses incurred in his apprehension could be paid. C. 17327, 
Nov. 4, 1908; 19542,' Apr. 19, 1906. 

V F 6. A deserter was furnished a deserter's release. Later he was 
apprehended for the desertion in question. Held, that neither the 
reward nor expenses could be paid for his apprehension. C. 17327, 
Nov. 19, 1908. 

V F 7. If, in view of the limitation of the one hundred and tliird 
article, the soldier has a legal defense to a prosecution for desertion, 
the reward is not payable for Ms apprehension.^ P. 55, 264, Sept. , 1892; 
59, 428, May, 1893; O. 16172, Apr. 12, 1904; 16981, Oct. 11, 1904; 
17602, Feb. 28, 1905. 

V F 7 a. After the delivery of a deserter by a civil officer it was 
discovered that the statute of limitations had run. Held, that in 
such cases, as a matter of pohcy, the full reward should not be paid, 
but only a fair remuneration for the time of the officer, together with 
reimbursement for actual expenses incurred.^ 0. 17602, Feb. 28, 
1905; 16981, Oct. 12, 1904. 

V F 7 b. A soldier deserted in the Philippines and was appre- 
hended. At his trial he maintained that since his desertion had 
occurred subsequent to the ratification of the treaty of peace between 
Spain and the United States, the desertion was in time of peace and 
tiis trial was, therefore, barred by the statute of limitations. Held, 
that in view of the fact that a condition of war existed in the Philip- 
pines until July 4, 1902, the date upon which the President pro- 
claimed peace in those islands, and that the desertion occurred prior 
to that date, the desertion was in time of war, and, therefore, the 
statute of limitations did not run and the reward should be paid. 
C. 19734, May 15, 1906. 

V F 8. A deserter was arrested on the soil of Mexico in violation 
of the territorial rights of that sovereignty. As an act done in vio- 
lation of law can not be made the basis of a legal claim, held, that 

» See XII Comp. Dec. 645. 

2 See par. 121, A. R., ed. 1910. 

^ See par. 121, A. R., ed. 1910, which provides that no reward shall be paid in the 
case of a deserter who can claim exemption from punishment under the one hundred 
and third article of wa '. 



DESERTION V F .9. 411 

the reward could not be paid.' R. 55, 1^12, Mar., 1888; P. 23, I40, 
Mar. 20, 1888; 37, 495, Jan., 1890; C. 1967, Jan., 1896. 

V F 9. Held that the reward should not be paid where a desertei 
was extradited from another country on other charges than deser- 
tion. P. 37, 495. 

V F 10 a. A deserter surrendered himself to a recruiting officer 
and was placed for safe-keeping in the custody of a police officer, 
who, after requesting instructions as to the proper disposition of the 
prisoner, delivered him to nearest military post, incurring expense 
in so doing. Held that he was not entitled to the authorized reward, 
but could legally be reimbursed for the expenses incurred by him 
from the appropriation for the apprehension and delivery of deserters. 
a 17327, Jan. 21, 1909. 

V F 10 b. A deserter surrendered to a recruiting officer, who fur- 
nished him transportation to a military post, where he directed him 
to report. The deserter while in transit was arrested. Held that he 
was not a deserter within the meaning of the law and regulations, viz, 
a fugitive from military justice. Further held that the officer making 
the arrest was not entitled to the reward. C. 17327, Sept. 21, 1908. 

V F 11. Current acts of appropriation for the support of tliQ Army 
provide for the payment of a reward for the apprehension of deserters. 
Held that the word ''citizen" as therein used is synonymous with 
the word "ci^olian" and is intended to describe a civil person as 
distinguished from an officer or an enhsted man belonging to the 
military establishment, and that it was intended by the use of that 
term to negative the view that such officer or enlisted man could 
become entitled to the reward by apprehending a deserter and restor- 
ing him to military custody. 0. 17327-A, Dec. 4, 1908. 

V F 12. An officer of the customs, empowered by law to make 
arrests of persons violating the revenue laws, but having no such 
general authority as is ordinarily possessed by peace officers *'to 
arrest offenders" (according to the terms of the act of Oct. 1, 1890, 
26 Stat., 648, authorizing certain civil officials to arrest deserters), 
held not entitled to be paid the regulation reward for the apprehen- 
sion, etc., without request, of a deserter from the Army. P. 46, 397, 
Ajyr., 1891. 

V F 13. Held that a justice of the peace of Idaho was not, by the 
laws of that State, a peace officer or authorized to arrest offenders, 
and was therefore not within the terms of the act of October 1, 1890 
(26 Stat. 648), or legally entitled to be paid the reward for the arrest 
etc., without request, of a deserter. Such justice may by his warrant 
authorize and thus cause arrests, but actual arrest pertains, under 
the laws of the State, to another class — sheriffs, constables, city 
marshals and poHcemen. P. 57, 91, Dec, 1892. 

V F 14. The reward should be withheld where there is evidence of 
collusion between the alleged deserter and the civil official. Advised 
that a suspicion of such collusion was properly entertained in a case 
where the soldier, after an absence of but a few days, voluntarily 
surrendered himself at or. near the post of delivery to a policeman 
who turned him over, without expense or difficulty, to the military 
authorities who did not treat Mm as a deserter but caused him to be 

• See Clay v. U. S. (Dev. Ct. Cls. Rep., 25). 



412 DESERTION V F 15. 

charged, tried, and convicted as an absentee without leave only. P. 
U, H, and 100, Nov., 1890; C. 15592, Dec. 10, 1903. 

V F 15. Where the soldier when arrested had been absent but 
three days, and was still in uniform, and had not been reported or 
dropped as a deserter, and his company commander did not have 
conclusive evidence of his intention not to return, held that there was 
not sufficient evidence that he was a deserter to justify the payment 
of the reward for his arrest and dehvery. P. 53, 227, Apr., 1890. 

V F 16. Two men who were suspected of being deserters from the 
Navy were apprehended and delivered to the naval authorities. 
One of them was discovered by such authorities to be a deserter 
from the Army and was turned over to a military guard sent for him. 
Held that the civil officers who made the arrest and turned this 
deserter over to the naval authorities were not entitled to the reward, 
as they were ignorant of the fact that the soldier was a deserter from 
the Army.i C. 17327, Mar. 11, 1909. 

V F 17. A merchant arrested a man and turned him over to the 
sheriff as a vagrant. It later developed that the man was a deserter 
and that the merchant did not know that fact. Held that as one who 
performs an act for which a reward is offered, in ignorance of the offer 
can not recover the reward,^ that the merchant was not entitled to 
the reward for the apprehension and dehvery of deserters. C. 17327, 
July 18, 1908, and Mar. 10. 1909. 

V F 18. A civil officer without request from the mihtary authorities 
arrested a man as a deserter from the Army who was not charged 
with being a deserter and who was not actually a deserter. Held 
that the officer making the arrest could not be compensated for his 
time and expenses and that he could not throw upon the Government 
the burden growing out of his own mistakes.^ R. 20, Mar., 1866; 
0. 9529, Jan. 2, 1901; 16086, Mar. 28, 1904; 18586, Sept. 19, 1905; 
20766, Dec. 13, 1906; 17327, July 8, 1907, Sept. 14, 1908, and Sept. 
18, 1911. 

V F 19. A civil officer by mistake arrested the wrong man, who 
sued him for wrongful arrest and obtained Judgment against him. 
The officer then requested reimbursement from the War Department 
in the amount of $400.62 for damages and expenses incurred by 
reason of arrest. Held that there is no provision in the appropriation 
for the apprehension and delivery of deserters for the reimbursement 
of officers who incur liability by reason of mistakes in identity, 
whether sucli mistakes are or are not due to a failure to exercise due 
care in the premises, and that, therefore, the claim could not be paid. 
C. 19263, Feb. 28, 1906. 

V F 20 a. A deserter stated to a police officer that he desired to 
surrender himself as a deserter and inquired the location of a recruit- 
ing party. The policeman arrested the deserter and delivered him 
as such. Held that while there was a technical arrest and possibly 
facts which might be construed as a delivery of the deserter that the 
claim for the reward was without merit. C. 17327, Feb. 2, 1909. 

' Anson on Contracts, p. 25, note 1; Wald's Pollock on Contracts (Williston's ed.), 
p. 13, note 12. 

^ VI Comp. Dec, 743; and see par. 121, A'. R., ed. 1910, which provides that the 
reward will be in full satisfaction of all expenses for arresting, keeping, and delivering 
the deserter or escaped military prisoner. 



DESERTION V F 20 b. 413 

V F 20 b. A deserter who was serving a sentence for vagrancy wrot e 
to his first sergeant announcing his wish to surrender himself as a 
deserter. The deputy sheriff read the letter and thus learned of the 
man's identity. Held that if the offer of a reward for the apprehen- 
sion of the man was withdrawn the deputy sheriff would not be en- 
titled to the reward, but that if the offer of the reward was not with- 
drawn and the deputy sheriff delivered the deserter he would be 
entitled to the reward. C. 17327, Apr. 30, 1909. 

VI A. A deserter was restored to duty without trial and thereafter 
served faithfully. i/eM that hemay bereenlisted. C. 2004, J an. 22, 
1896; 23S4, June 24, 1896; Jan. 18, 1898; 9735, Jan. 31, 1901; 9759, 
Feb. 4, 1901; 16119, Am. 2, 1904. 

VI B. When a soldier deserts from one regiment and enlists in 
another he may be held to serve out both enlistments or either of them. 
In the latter case the Government abandons the first enlistment by 
discharging him therefrom without honor and holds him to the second 
enlistment. No transfer is necessary. C. 2115, Mar., 1896. 

VI C. A deserter at large from the Volunteer Armj^ was drafted 
in 1864. and served as a drafted soldier until mustered out. Held 
that his status as such drafted soldier was unaffected by the fact that 
he was in desertion at the time he was drafted ; nor was his status as a 
soldier in desertion affected by his being drafted or by his service as 
a drafted man. C. 2106, Mar. 21, 1896; 5708, Apr. 27, 1899. 

VI D. Upon the question of whether or not there is any way by 
which a man who has once been convicted of desertion, and sentenced 
to dishonorable discharge, the sentence having been approved and 
executed, can again enter the service as a soldier, held that it is 
within the power of the Secretary of War to decide, on the facts pre- 
sented, that the prior service of the soldier was honest and faithful, 
even though it included desertion, and that upon such decision he 
would be eligible for reenlistment. C. 20991, Jan. 2, 1907. See also 
Desertion XVI A 1. 

VII A 1 . A first-class private of the Engineers was dropped as a 
deserter and later surrendered himself, and the question arose as to 
whether or not he should be taken up as a first-class private. Held 
that the action of the company commander in dropping this soldier 
on the morning report and rolls of the company operated to vacate 
his appointment as first-class private, and that the erroneous action 
of the company commander in taking him up as a first-class private 
upon his return to military control, and while in arrest and under 
serious charges, and his subsequent trial under that designation, did 
not operate to restore him to the position of first-class private. C. 
24857, Mar. 18, 1911. 

VII A 2. A deserter upon physical examination as required by 
the regulations was discovered to be insane and the insanity to haA^e 
been contracted not in line of duty and while in desertion. Held 
that it was not one of the cases in which the Secretary of War should 
issue an order for the commitment of the man to the Government 
Hospital for the insane, but that a discharge without honor should 
iBsue if it had not already been delivered. C. 24497, Feb. 17, 1909. 

VIII. Statute of limitations. (See 103, A. W.) 

IX A. A soldier was charged with desertion. Held that this did 
not constitute evidence that he had committed the offense. E. 2, 
520, June, 1863. 



414 DESERTION IX B. 

IX B. An entry on a morning-report book, descriptive list, or 
other official statement or return that a soldier deserted on a certain 
day was held as not legal evidence that he had committed the offense 
of desertion, but evidence only of the fact that he had been charged 
with commission of such offense. R. 22, 15, Mar., 1866. 

IX C. A report from The Adjutant General's Office contained 
extracts from the muster rolls of a regiment in which was recorded 
the statement that a soldier of that regiment had deserted on a cer- 
tain date. Held that this was insufficient proof of the fact of desertion 
to justify the soldier's conviction for that offense. B. 12, 28, Oct., 
1864. 

IX D. A report of prisoners contained the statement that a soldier 
deserted on a certain day and was subsequently apprehended as a 
deserter. Held that upon his trial for desertion tins entry was not 
legal evidence of the fact of desertion. R. 37, 590, June, 1876. 

IX E. A first sergeant swore on the trial of a soldier charged with 
desertion that the accused "deserted" at a certain time and place. 
Held that this statement was insufficient as proof to establish the 
offense charged, as it was the province of the witness simply to state 
the facts and circumstances so far as known to him attending the act 
alleged, and the province of the court to arrive at the conclusion of 
whether or not the offense committed was " desertion." R. 38, 64.O, 
June, 1877. 

IX F. A soldier was dropped from the rolls as a deserter. Held 
that that is not legal evidence to prove the fact of desertion upon his 
trial for that offense. R. 49, 118, June, 1885; C. 18764-B, May 5, 
1910. 

IX G. The amenability to trial of a deserter from an enlistment in 
the Army is not affected by the fact that when he enlisted he was a 
deserter from the Marine Corps. R. 48, 203, Dec, 1883; C. 18694, 
Oct. 10, 1905. 

IX H. In trials of desertion it is not necessary to introduce evi- 
dence as to the date of enlistment unless the same is alleged in the 
specffication. C. 2844, Jan., 1897. 

IX I. Held to be no defense to a charge of desertion that the 
accused, at the time of enlistment which he is charged with having 
abandoned, was an unapprehended deserter from the Army; an 
enlistment of a deserter being not void but voidable only.* R. 34, 
499, Oct., 1873; 48, 203, Dec, 1883. 

IX K. A soldier was tried for desertion and introduced evidence 
to show that he was induced to abandon the service because of ill 
treatment, want of proper food, etc. Held that such circumstances 
can only palliate, not excuse a desertion if committed, and do not 
constitute a defense to the charge of desertion. R. 34, 4^^ Aug., 
1873. 

IX L. A Swiss enlisted in our Army and after two years deserted 
because of intense nostalgia (homesickness), or matadie du pays. 
Held that although this, under the circumstances, was a matter of 
extenuation it was not a defense. R. 28, 4^6, Apr., 1869. 

IX M. A German who had enlisted received notification from the 
militaiy authorities of the North German Empire to report at home 
for military duty, under the penalty of being considered a deserter 
from the German Army. Held that this constituted no defense to 

^ See fiftieth article of war. 



BESERTION IX N. 415 

the desertion committed by him from our service.* R. 34, 4^1, 
Aug., 1873. 

IX N. It is, however, a complete answer to a charge of desertion 
before a court-martial, that the accused has previously been "restored 
to duty without trial," as sanctioned by Army Regulations, provided 
he has been so restored by competent authority, 1. e., the commander 
who would have been authorized to convene a general court for his 
trial; otherwise, however, when so restored by a superior not duly 
authorized. R. 6, 4I8, Oct., 186 4: P. 18, 302, Aug., 1887; 21, 223, 
Dec, 1887. 

IX O. Held that a deserter from a Volunteer regiment was, after 
the disbandment of the Volunteer Army, no longer amenable to 
military jurisdiction, having become thereupon a civilian. P. 4^, 
4O6, Aug., 1890; 50, 192, Nov., 1891; C. 494, Oct., 1894. The Ha- 
bility of such a deserter to trial and punishment by court-martial 
continues, notwithstanding the muster out of his own regiment, 
until the entire Volunteer Army has been mustered out of service. 
C. 6410 and 6433, May, 1899; 6593, June, 1899; 9005, Sept., 1900. 

X A. A soldier pleaded guilty to the charge of desertion, was con- 
victed and sentenced to dishonorable discharge, forfeiture of pay and 
allowances and confinement at hard labor for two and one-half years. 
Upon application for a pardon to restore his citizenship rights which 
were forfeited in the operations of sections 1996 and 1998, R. S., it 
was held that these sections were taken from legislation enacted 
about the close of the Civil War and are believed to be unduly severe 
for desertions in time of peace and not in the face of an enemy. Fur- 
ther held that it has been usual in like cases to grant relief by an 
exercise of the pardoning power. C. 5280, Nov. 10, 1898; 6105, 
Mar. 23, 1899: 11855, Jrni. 15, 1902; 11915, Jan. 29, 1902; 16215, 
Apr. 27, 1904; 16618, July 26, 1904. 

X B. The Executive order setting forth the maximum limits of 
punishment provides that the punishment for desertion may be 
mcreased for each previous desertion. Held that this is not Umited 
to desertions in the current enlistment. C. 2210, Apr. 13, 1896; 
I4I6I, June 27, 1908. 

X C 1 . Held that a general prisoner who was convicted of deser- 
tion only could not in view of the prohibition in the ninety-seventh 
article of war be confined in a penitentiary. C. 9002, Sept. 24, 1900. 

X C 2. A soldier was convicted of desertion and of other offenses 
the punishment for which ordinarily includes confinement in a peni- 
tentiary. Held that his conviction for desertion would not prevent 
his incarceration in a penitentiary. C 10131, Apr. 4, 1901; 19397, 
Mar. 31, 1906. 

X D. A soldier deserted in time of war. He was brought to trial 
after the end of the war, i. e., in time of peace. Held that while the 
statute of limitations does not run, the punishment may not exceed 
that set forth in the Executive order. C. 17294, Dec. 24, 1904; 21018, 
Sept. 26, 1905; 17034, Feb. 11, 1911. 

XI. Every desertion in which the deserter leaves his station before 
he surrenders or is apprehended for the desertion includes an absence 
without leave. Upon a trial for such desertion, the accused is tried 

' Our public law, as to the principles of the right of expatriation, is found in section 
1999, R. S. 



416 DESERTION XII A. 

also for the absence without leave involved in the offense charged.* 
If acquitted, without reservation, of the desertion, he is acquitted also 
of the lesser offense. If convicted, as he may be, of the lesser offense 
only, under a charge of the greater, he is acquitted in law of the 
greater. R. 33, 123, July, 1872; C. 9528, Jan. 13, 1901; 12168, 
Mar. 10, 1902; 12296. Mar. 25, 190 12597, June 27, 1902; 12967 
May 7, 1904; 18934, Dec. 28, 1905. 

XII A. A deserter surrendered. There were circumstances which 
commended him to the consideration of superior authority. Held 
that there was no legal objection to restoring him to duty without 
trial, a 13554, Oct. 25, 1902; 18902, Dec. 6, 1905. 

XII A 1. A soldier deserted and reenlisted in another regiment. 
His superior officers recommended pardon and restoration to duty. 
Held that there was no legal objection to his restoration to duty with- 
out trial in the second or fraudulent enlistment. C. 5465, Dec. 8, 
1898. 

XII B. In the case of a soldier who, because of particularly em- 
barrassing conditions that surrounded the incidents of his service, 
deserted and who as he grew older saw flie error of his way and wished 
to return to the service and serve his country, and whose only offense 
had been that of desertion, held that upon surrender he could be 
restored to duty without trial by the proper authority, but that the 
application for such restoration should be made by a company com- 
mander. C. 16306, May 7, 1904, Oct. 14, 1904, and Dec. 2, 1904, 
18902, Apr. 10, 1907, and Dec. 15, 1909. 

XIII. Making good time lost. (See forty-eighth article of war.) 

XIV A 1 . Held that as an enlisted man while absent in desertion is 
not rendering service under his enlistment contract, and as such 
service must be faithfully rendered to entitle him to the pay and 
emoluments which accrue upon its rendition, that no right to pay or 
allowances can accrue in behalf of a soldier who by reason of un- 
authorized absence has put it out of his power to render the service 
stipulated for in his contract of enlistment.^ C. 17768, Nov. 9, 1909; 
27004, July 11, 1910. 

XIV A 2, A soldier was tried and convicted of desertion. The 
reviewing authority disapproved the conviction on the sole ground 
that the evidence did not sustain the charge. Held that the soldier 
can not legally be subjected to the forfeiture of pay and allowances 
since he can not be treated as a deserter in law. R. 27, 262, Sept., 
1868; 35, 638, Oct., 1874; 36, 82, Nov., 1874- C. 17768, Nov.9, 1909. 

XIV A 3. The forfeiture of pay and allowances prescribed for 
deserters by Army Regulations can be imposed in any case onl^ 
upon a satisfactory ascertainment of the fact of desertion. This 
fact may, of course, be established by the finding of a general court- 
martial. Held that it may also be established administratively in 
the absence of an investigation by a court-martial as, for instance, 
by the restoration to duty without trial by order of competent 
authority of a soldier charged with desertion, ^ but that as m the 
case of statutory liabOity the forfeiture of pay and allowances is 

1 See 13 Op. Atty. Gen. 460. 

2 XII Comp. Dec, 328-338, Dec. 2, 1905; XV id., 661, Apr. 28, 1909. 

3 See U. S. V. Landers (92 U. S. 79, Oct., 1875), in which the Supreme Court held 
that the pay and allowances of a soldier may be withheld upon a showing on the 
muster roll of his company that he is a deserter. This case went up from Court of 
Claims. See 9 Ct. Cls. 242, December term, 1873. See also 33 id., June 21, 1897. 



DESERTION XIV A 4. 417 

generally applied only upon the approved conviction by court- 
martial of the alleged deserter. R. 7, 207, Feb., and 325, Mar., 1864; 
50, 122, Mar., and 421, June, 1886; P. 21, 224, Dec. 20, 1887; 49, 
150, Sept., 1891; C. 4937, Sept, 1898; 7232, Nov.l, 1899. 

XIV A 4. Held that an order directing the discharge without 
honor of a soldier on account of desertion is sufficient evidence to 
justify the Pay Department in withholding pay and allowances 
that were due him at the time he was chargecl with desertion. O. 
7232, Nov., 1899; 8355, June 13, 1900. 

XIV A 5. A soldier was convicted of desertion. The department 
commander disapproved the finding without announcing the reason 
for the disapproval. Held that in such cases, viz, in which the pay 
of an enlisted man depends upon his status as absent with or without 
leave or in desertion, that the fact should be ascertained by The 
Adjutant General from the records of his office who shviuld make a 
report to the Paymaster General in response to a request from that 
officer. 1 C. 17768, Nov. 9, 1909.^ 

XIV A 6. A soldier charged with desertion was acquitted. Held 
that he can not be subjected to a forfeiture of pay and allowances 
on account of desertion even though the finding be disapproved by 
the reviewing authority. R. 31, 19, Nov., 1870. 

XIV A 7. A soldier was erroneously charged on the rolls with 
desertion and the charge was removed in War Department orders. 
Held that the removal operated to relieve him of any and all stop- 
pages which had been charged against his pay account on account of 
desertion. R. 39, 413, Feb., 1878; 41, 518, Mar., 1879; C. 12227, 
Mar. 28 and Oct. 7, 1902; 14992, Aug. 27, 1903; 17311, Jan. 9, 1905; 
17768, Apr. 1 and 25, and June 17, 1905.^ 

XIV B. The forfeiture of the rights of citizenship, and the incapacity 
to hold office under the United States, imposed upon deserters by the 
act of March 3, 1865 (sees. 1996 and 1998, R. S.), can be incurred only 
upon and as incident to a conviction of desertion by a general court 
martial, duly approved by competent authority.^ R. 32, 370, Mar., 
1872; 33, 221, Aug., 1872; 35, 464, July, 1874; 38, 434, Feb., 1877; 
39, 433, Mar., 1878; 42, 30, Nov., 1878; P. 3, 221, Feb., 1884; 42, 
4O8, Aug., 1890; C. 248, Aug. 30, 1894; 2934, Pel)., 1897; 3095, 
Apr., 1897; 4513, July, 1898; 10082, Mar. 27, 1901; 10918, July 
25, 1901; 11345, Oct. 7, 1901; 11508, Nov. 7, 1901; 14163, Feb. 13, 
1903, Feb. 5, 1908, and Mar. 25, 1911; 16178, Apr. 11, 1904, 
and Feb. 4, 1908; 16215, Apr. 27, 1904; 19577-B, Feb. 26, 1909; 
19577-D, Sept. 7, 1910; 19577-E, MaT. 4, 1911. These disabilities, 
though attaching to every such conviction, may be removed by an 

* See par. 247, Manual for the Pay Department, U. S. Army, revision to include 
Aug. 15, 1910, in which the rule is announced that if the disapproval of the reviewing 
authority is based upon other reasons than lack of evidence to sustain the charge 
that the soldier should be held in matters of payment to be a deserter, but if on lack 
of evidence he is not a deserter. Also see XII Comp. Dec. 328, Dec. 2, 1905, and 
XV id., G61, Apr. 28, 1909. 

^Such is believed to have been the uniform cburse of ruling in the civil courts. 
See State v. Symonds, 57 Maine, 148; Holt v. Holt, 59 id., 464; Severance v. Healey, 
50 N. Hamp., 448; Goetcheus v. Matthewson, 61 N. York, 420 (and 5 Lansing, 214; 
58 Barb., 152); Huber v. Reily, 53 Pa. St., 112; McCafferty v. Guyer, 59 id., 110; 
Kurtz V. Moffit, 115 U. S., 487,501. 

As to the liability to make good to the United States the time lost hy a desertion, see 
Forty-eighth Article. 

93673°— 17 27 



418 DESERTION XIV B 1. 

executive pardon of the offender. R. 35, 85, Jan., 1874; P- 4^, ^^'5, 
Aug., 1890; 56, 56, Oct., 1892; 63, 494, Feh., 1894. But^ whether 
a soldier duly convicted of desertion and dishonorably discharged 
the service may vote at a State election would be determined by 
the law of the particular State. C. 429, Oct., 1894; 15900, Oct. 
17, 1904: 14725, May 28, 1903; 19577-A, May 18, 1908. 

XIV B 1. A Filipino deserted from the Philippine Scouts. Held 
that as he was not a citizen of the United States he did not forfeit 
citizenship in the United States. Held further that as no law had 
been passed by C^ongress or by the Philippine Commission forfeiting 
citizenship in the Philippines on account of desertion he had not 
forfeited any citizenship that he may have had in the Philippine 
Islands. 0. 23574, July 13, 1908. 

XIV C. A deserter can not legally be subjected to any forfeiture 
other than those prescribed by statute or Army regulation. He 
incurs, for example, no forfeiture of his own personal property. So, 
where it was proposed to sell certain private property belonging to and 
left by a deserter and devote the proceeds to the post fimd, ^^M that 
there was no legal authority for such appropriation by the military 
authorities or the Government. R. 35, 454^ June, 1874- So a soldier, 
by reason of having deserted, does not forfeit local bounty money 
wliich has been paid him upon enlistment or subsequently, or any 
other money found in liis possession upon his arrest. And such 
money can not legally be withheld from him, to be appropriated to a 
regimental or ])ost fund or any other purpose, but, being his own 
personal ]:)roperty, unaffected by his offense, must be treated as such. 
B. 13, 329, Feb., 1865; 15, 128, Aug., 1865; 16, 168, 595, May and 
Sept., 1865; 25, 4OO, Mar., 1868. 

Similarly Tield that he does not forfeit private funds that were 
in the care of the company commander. C. 20812, Dec. 21, 1906. 

XIV D. Where a soldier was discharged without honor by reason of 
desertion, while in the Government Hospital for the Insane, and the 
circumstances attending his desertion indicated that he was probably 
not responsible for his acts, Jield that he should not be visited with the 
forfeitures prescribed by statute for the offense of desertion. C. 
17327, Mar. 5, 1910. 

XIV E. Held, that under section 1305, R. S., a soldier forfeited on 
desertion the money he deposited with a paymaster. C. 9166, Oct. 24, 
1900; 17295, Dec. 21, 1904; 19577, Feh. 15, 1910. 

XIV F. A soldier deserted who owed money to the company fund 
of his compan}^ Held that after his account was settled all moneys 
standing to his credit were forfeited to the United States and could 
not be set aside to pay his indebtedness to the company fund. C. 
14992, Aug. 28, 1903. 

XV A. A pardon does not operate retroactively, and can not there- 
fore "remove a charge" of desertion. R. 50, 395, June, 1886; P. 42, 
4O6, Aug., 1890: 43, 36, Sept., 1890. It does not wipe out the fact 
that the party did desert nor can it make the record say that he did 
not desert. It can not change facts of history.^ P. 58, 44^ 1 Mar., 
1893; C. 1883, Aug. 8, 1896, and Feb. 25, 1899; 3125, Apr. 21, 1897; 
14899, July 30, 1903; 19522, Apr. I4, 1906; 20342, Sept. 7, 1906; 
24305, Jan. 8, 1909; I4I63, Feh. 4, 1909. 

1 See 22 Op. Atty. Gen., 36. 



DESERTION XV B 1. 419 

XV B 1, A soldier, who had successively enlisted in and deserted 
from two companies of the same volunteer regiment, returned in 
response to the President's proclamation and served out his first 
enlistment. Held that the proclamation operated as a pardon for 
both of his desertions, and tliat he should be treated as discharged 
from his second enhstment bv his restoration to dutv in the first. 
C. 3U7, Aug. 20, 1897. 

XV B 2. A soldier, who enlisted August 16, 1862, for three years, 
deserted May 16, 1864, was arrested April 20, 1865, and again deserted 
September 29, 1865. There were thus two charges of desertion stand- 
ing agamst him. Under the President's proclamation of March 11, 
1865, all deserters who returned to service within 60 days were par- 
doned "on condition that they * * * serve the remainder of 
their original terms of enlistment and in addition thereto a period 
equal to the time lost by desertion." And a War Department cir- 
cular of May 29, 1865, provided that when deserters had been arrested 
during the continuance of the said ploclamation they should be 
entitled to its benefits. In the particular case under consideration 
the soldier was arrested during the continuance of the proclamation 
and was therefore pardoned on the conditions named therein. He 
thus became obliged to serve until Jidy 20, 1866, but as he failed to 
comply with this condition by deserting September 29, 1865, lidd that 
both charges of desertion should be allowed to stand agamst him. 
C. 13.90, July, 1895. 

XV B 3. There is no law extending amnesty to soldiers who are 
now deserters from the United States Army. C. 778, Dec. 19, 1894. 

XV C. Application was made for the pardon of a deserter at large. 
Held that it has not been the practice of the War Department to 
consider applications for the pardon of deserters so long as they 
remain fugitives from justice. C. 3304, June 23, 1897; 3656, Now 
13, 1887; 3950, Nov. 1, 1888; 5479, Dec. 16, 1898; 5733, Feb. 9, 1899; 
6410, May 11, 1899: 7007, Sept. I4, 1899; 7601, Feb. 6, 1900; 7819, 
Mar. 20, 1900; 8032, Apr. I4, 1900: 8864, Sept. 1, 1900: 9005, Sept. 
25, 1900; 948I, Dec. 28, 1900: 9842, Feb. 18, 1901; 10717, June 27, 
1901 : 10839, July 12, 1901 : 11565, Nov. 8, 1901 : 11639, Dec. 27, 1901; 
II64O, Dec. 28, 1901; 11901, Jan. 11, 1902: 13821, Dec. 16, 1902: 18902, 
June 17, 1908; 24634, Mar. 18, 1909; 24691, Mar. 20, 1909: 19577-D, 
Dec. 21, 1910. • . . . 

XV D. Held that restoration to duty is a constructive pardon 
for desertion. C. 4076, Apr. 30, 1898; I68I4, Sept. 3, 1904. 

XV E. The practice of the department has been to secure a pardon 
for the purpose of restoring citizenship in cases where a soldier has 
been convicted of desertion, has served the term of imprisonment 
imposed by the court, and where his subsequent conduct in civil 
life has been such as to warrant the pardon. C. 14380, Apr. 6, 1903; 
14381, Apr. 6, 1903; 14583, May 16, 1903: 14899, July 7, 1903: 
14921, Sept. 12, 1903; 15323, Oct. 17, 1903; I54I8, Oct. 24, 1903; 
15514, Nov. 20, 1903: 15682, Jan. 18, 1904; 15747, Jan. 18, 1904; 
15968, Mar. 2, 1904; 16008, Mar. 8, 1904; 16323, May 12, 1904; 
16513, June 28, 1904; 16601, July 18, 1904; 17007, Oct. 15, 1904; 
15900, Oct. 17, 1904; 17071, Nov. 7, 1904; 17519, Feb 15, 1905; 
17582, Feb: 24, 1905; 17598, Feb. 28, 1905; 17741, Mar. 28, 1905; 
17799, Apr. 8, 1905; 17693, Apr. 19, 1905; 18027, May 20, 1905; 
17978, June 3, 19U5; 18383, Aug. 3, 1905; 18837, Nov. 17, 1905; 



420 DESERTION XV E 1. 

19358, Mar. 16, 1906; 19452, Apr. 12, 1906; 19577, Apr. 26, 1906, to 
July 30, 1911; 14163, Feb. 5, 1908. 

XV E 1. It lias been the practice of the department to require 
apphcants for pardon whicli restores citizenship that has been lost 
under sections 1996 and 1998, R. S., to submit with their applications 
certilicates of at least two reputable citizens of their community as 
to their reputation for being honest, industrious, and having good 
nioial character. Generally applications will be considered only 
after one year has elapsed since the man has been released from 
mihtary control. C. 19577-A, Aug. 17, 1908, Aug. 21, 1908, Sept. 
12, 1908, Sept. 18, 1908, Oct. 14, 1908, Oct. 30, 1908, Dec. 2, 1908, 
Dec. 17, 1908, Jan. 24, 1909, Fel). 26, 1909, Sept. 3, 1909, Jan. 17, 
1911, Jan. 18, 1911, and Mar. 3, 1911. 

XV F. A general court-martial convicted a soldier of desertion, 
but gave him a sentence which retained him in the service. Held 
that in view of the fact that by conviction of desertion his citizen- 
ship was forfeited under sections 1996 and 1998, R. S., that he should 
be informed that if he desired a pardon which would operate to restore 
his citizenship that he should make application in a letter to The 
Adjutant General of the Army for such a pardon by the President. 
C. 19579-A, Apr. 13, 20, and 23, 1908. 

XVI A. Although a legally executed discharge without honor 
issued by competent authority on account of desertion can not be 
set aside, Jicld that on sufiicient evidence the Secretary of War may 
decide that, notwithstanding the discharge without honor by reason 
of desertion, the man was nevertheless not a deserter.^ C. 8355, 
June —, 1900; 12227, Mar. 25 and. Oct. 7, 1902, and June 5, 1904; 
14992, Aug. 27, 1903; 14163, Feb. 5, 1908. 

XVI A 1. Ordinarily desertion would be sufficient evidence that 
service during the term in which it occurred was not honest and 
faithful, but if in an exceptional case the Secretary of War should 
decide that it was, notwithstanding the desertion, he would be acting 
within his discretion under the act of August 1, 1894 (28 Stat. 216). 
The provision in the act of June 16, 1890 (26 Stat. 157), that deser- 
tion renders service not honest and faithful is limited to the purposes 
of that act and does not control enlistments under the act of 1894. 
C. 2004, Jan., 1896; 2121, Mar., 1896; 3530, Sept., 1897; 3794, 
Jan., 1898; 12004, Feb. 1, 1902; 12395, Apr. 21, 1902; 15114, June 
22, 1903; 16119, Apr. 2, 1904; 16838, Sept. 1, 1904; 17658, Mar. 11, 
1905; 26007, Feb. 29, 1909. 

XVI B. Held that a charge of desertion entered against a soldier 
in a particular term of enlistment is removed by an honorable dis- 
charge from such enlistment.^ C. 204I, May, 1896. 

XVI C 1. A soldier was charged with desertion and it was subse- 
quently established that he was a prisoner in the hands of the enemy; 
held that the rolls could not properly be mutilated by an erasure of 
the entry of desertion; but in making subsequent rolls the true 
facts as then found could be entered, together with entry of the fact 
that the charge of desertion on prior roll was erroneous ; and a note 
might properly be made on the erroneous roll referring to the subse- 

1 Where charge is removed by competent authority, the conditions are the same as 
though no charge of desertion had been made. 34 Ct. Cls., 446, June 5, 1899. 
"^ ^e Digest of Decisions of 2d Comp., vol. Ill, sec 559, Aug. 31, 1885. 



I 



DESEKTION XVI 2. 421 

qiient roll for the record of the fact that the entry was erroneous, 
a 9534, Jan. 5, 1901; 15942, Feb. 24, I9O4. 

XVI C 2. Where a soldier was insane at the time of his desertion, 
held that the charge of desertion should be removed. C. 670, Nov. 
23, 1894; 2101, Mar, 20, 1896; 21117, Feb, 25, 1907. 

XVI C 3. Held in the case of a soldier who was erroneously charged 
with desertion, that the rolls can not properly be mutilated by an 
erasure of the entry of desertion; but in making subsequent rolls the 
true facts, as then found, can be entered thereon together with an 
entry of the fact that the charge of desertion on a ])rior roll was errone- 
ous ; and a note may properly be made on the erroneous roll referring 
to the subsequent roll for the record of fact that the entrv was 
erroneous. C. 6278, Apr. 25, 1899. 

XVI C 4. A soldier in the PhiHppines was given a furlough with 

Eermission to return to the United States. He reported his address, 
ut owdng to a miscarriage in the mails he failed to receive notice that 
he should report to headquarters before a discharge could be issued 
to him, and was accordingly dropped as a deserter. Held that the 
charge of desertion was erroneously made and should be removed 
by the department commander under authority of the Army Regu- 
lations. C. 18352, July 29, 1905; 25066, July 4, 1909. 

XVI C 5. If a soldier absent on pass should be the victim of an 
accident, as the result of which he is placed unconscious in a hospital 
and so unable to communicate with the military authorities, and 
thereby be dropped as a deserter at the end of 10 days, TieM that his 
absence would be susceptible of a perfectly proper explanation, 
would not entail penal consequences on account of desertion, and 
that under such circumstances the soldier should not be required, 
under the forty-eighth article of war, to make good the time lost, and 
that the charge should be removed. C. 21117, Fel). 25, 1907. 

XVI C 6. A soldier having been informed b}^ mistake that his 
application for furlough had been approved, left his station. The 
application was actually disapproved, and the man later was dropped 
as a deserter, and apprehended as such. Held, that the charge should 
be removed as having been erroneously made. C. 1A398, Mar. 31, 
1903, and SejA. 26, 1907. 

XVI D 1. Held that a charge of desertion can be removed, under 
the act of March 2, 1889, (25 Stat. 869) only when the desertion oc- 
curred during the Civil War. C. 2683, Oct. 16, 1896. 

XVI D 1 a. The persons from whose military record there may be a 
removal of the charge of desertion, under the act of March 2, 1889, 
(25 Stat. 869),* are those against whom such a charge. is "now stand- 
ing." Deserters, therefore, whose cases had, at the date of the act, 
been judicially duly disposed of — by trial, conviction, and sentence by 
court-martial — are not within the pur-sdew of the statute. R. 53, 143, 
Oct., 1886; P. 18, 296, Aug., 1887; C. 359, Sept., 1894 Similarly 

1 The following acts of Congress have provided for the removal of the charge of 
desertion against Oivil War veterans under certain circumstances: 

1. Aug. 7, 1882 (22 Stat. 347). 

2. Aug. 5, 1884 (23 Stat. 119). 

3. May 17, 1886 (24 Stat. 51). 

4. Mar. 2, 1889 (25 Stat. 869). 

5. Mar. 2, 1891 (26 Stat. 824). 

6. July 27, 1892 (27 Stat. 278). 

7. Mar. 2, 1895 (28 Stat. 814). 



422 DESEETION XVI D 1 b. 

held with respect to deserters restored to duty without trial. In both 
cases (conviction by court-martial and restoration to duty without 
trial) the charge of desertion no longer remains, but the fact of de- 
sertion has become a matter of record and can not be removed. C. 
2021, 2025, Jan., 1896; 2669, Oct., 1896; 2934, Feb., 1897. 

XVI D 1 b. The act of March 2, 1889, applies to cases in which a 
charge of desertion is "now standing," and does not apply to cases 
in which the charge has been judicially disposed of by a court-martial, 
or where the soldier has been restored to duty without trial. The 
disposition of the charge in either of the methods above mentioned 
operates to remove tlie cliarge, but ihefact of desertion, having become 
a matter of record, can not be removed. C. 21835, Apr. 16, 1910; 359, 
Sept. 27, 1894. 

XVI D 1 c. Section 3 of the act of Mai-ch 2, 1S89, provides for the 
removal of a charge of desertion if the following tliree conditions are 
fulfilled, viz: 1, That the soldier enlisted again within four months of 
the desertion; 2, that he served such term faitlifuUy; and 3, that 
such reenlistment was not made for the purpose of securing bounty, 
gratuity, etc. A soldier deserted on December 6, 1861, and enlisted 
on the 13th of the same month in another regiment, deserted from 
the latter regiment on January 8, 1863, enlisted on the 15th of that 
month in a third regiment, and was honorably discharged from this 
enlistment. Each of the last two enlistments was made within four 
months of the desertion in the preceding enlistment and neither of 
them was made for the purpose of securing bounty, etc. Held, there- 
fore, that as he served the third enlistment faithfully the charge of 
desertion pertaining to the second enlistment was properly removed, 
but that such removal and the consequent issue of an honorable dis- 
charge did not affect the fact that he did not serve that enlistment 
faithfully. Further held, therefore, that the charge of desertion per- 
taining to the first enlistment could not be removed. C 3928, Mar., 
1898; 1361, Aug.l, 1895; 3036, Apr. 1, 1897; 9434, Dec. 31, 1900; 
11167, Sept., 1901; 12312, Apr. 21, 1902; 23100, July 26, 1910. 

XVI Did. While the first section of the act of March 2, 1889, 
provides that the charge of desertion standing against a volunteer 
soldier who sei-ved until May 1, 1865, and had previously served six 
months shall be removed, etc., there is no good ground for holding 
that the act as a whole contains any provision that would warrant 
taking May 1, 1865, as the close of the war, so far as a soldier of the 
Regular Army is concerned, or as a date before whicli a desertion must 
have occurred to make section 3 of the act applicable. Thus where 
a soldier who had enlisted in the Regular Army on March 17, 1864, 
deserted August 20, 1865, and 11 days thereafter enlisted in an- 
other regular regiment not for the purpose of bounty, etc., and was 
honorably discharged therefrom, held that the charge* of desertion 
should be removed . C. 3891 , Mar. 10,1 898; { 6833,^ Aug. 31, 1904. 

XVI D 1 e. A volunteer soldier, having enlisted in 1861 for three 
years, deserted in 1862 and witliin a month enlisted in the Navy for 
one year, from which enlistment at the expiration thereof he received 
an honorable discharge. He thus escaped in fact one year's service 
under his Army enlistment. Held that his thus avoiding one year's 
service was not a gratuity within the meaning of section 3 of the act of 
March 2, 1889, and did not preclude the removal under that section of 
the charge of desertion. C. 163, Aug. 20, 1894; 3090, Apr. 19, 1897; 
10722, Jan. 21, 1901; I424I, Mar. 2, 1903. 



DESEKTION XVI D 1 f. 423 

During the Civil War a soldier deserted. If he had not done so he 
would have been entitled to a bounty of S400. After desertion he en- 
listed in the Navy, and the total of the bounties credited to him on 
that account was $700. Held that under section 3 of the act of March 
2, 1889 (25 Stat., 869), his enlistment in tlie Navy was for the purpose 
of securing the additional bounty and that therefore the charge of 
desertion can not be removed. C. 1/^231, Mar, 4, 1903. 

XVI D 1 f. Section 7 of the act March 2, 1889 (25 Stat. 869), pro- 
vides that the charge of desertion shall not be removed if the soldier 
left his command while in arrest or under charges for breach of military 
duty. Where a soldier deserted in 1865, while in arrest and under 
charges for breach of military duty, after the expriation of his term of 
enlistment, it was held that he was still a soldier at the time he de- 
serted and that therefore the section named applied in his case and 
precluded a removal of the charge of desertion. C. 3099, Apr. 12, 
1897. 

XVI D 1 g. By section 13, of the enrollment act of March 3, 1863 
(12 Stat. 731), a drafted man who failed to report to the board of en- 
rollment was declared " a deserter" and triable therefor by court- 
martial. Held that this section imposed upon liim the single duty of 
reporting to the enrollment board, and to that extent and for that 
purpose only gave him a miUtary status; that prior to his accejitance 
or rejection by the board he was not fully in the military service of 
the United States, nor a soldier within the ordinary meaning of that 
term. Wliere such a drafted man failed to report and subsequently 
within four months enlisted elsewhere, held upon an application by 
him to have the charge of desertion removed under the act of March 2, 
1889, that not being a soldier in the military service within the mean- 
ing of the act at the time he became a ''deserter," the same did not 
apply to his case and that therefore the charge could not be removed. 
C. 2041, 2042, May, 1896. 

XVI D 2. The act of May 17, 1886 (24 Stat. 51), provided that, 
where a soldier of the Civil War deserted from one organization 
and within three months enlisted in another, the charge of deser- 
tion, if certain facts were shown, should be removed and a certificate 
of discharge issued from the organization in which he first served. 
Held that the purpose of this legislation was to change the status of 
beneficiaries under it from that of deserters to that of soldiers honor- 
ably discharged as of the date of their desertion. C. 2090, Mar., 1896. 

XVI E. A deserter was restored to duty without trial. Held that 
this did not operate as an acquittal or to remove the charge of deser- 
tion. C. 4076, Apr., 1898; 18678, Oct. 10, 1905; 18678, Oct. 11, 1905; 
14398, Sept. 26, 1907. 

XVI F. A soldier was tried and acquitted by a regimental court- 
martial of the charge of desertion. Held that the acquittal did not 
operate to remove the charge of desertion, since the court was without 
jurisdiction. C. 995, Feb. 15, 1895; 27004, July 11, 1910. 

XVII A. A deserter's release is intended for deserters in whose favor 
the limitation of the present one hundred and third article of war has 
fully run and who therefore have a perfect defense to a prosecution. 
P. 52, 326, Mar. 1892; 61, 430, Sept., 1893; 62, 1, Oct., 1893; 63, SO, 
Dec, 1893, and 347, Feh., 1894; C. 96, July, 1894; 4130, May 17, 
1898; 21367, Apr. 12, 1907; 14163, Feh. 4, 1909, and Mar. 25, 1911; 
16257, Mar., 11, 1908. 



424 DESERTION XVII A 1. 

XVII A 1. The so-called "deserter's release," provided for by Gen- 
eral Orders 55 of 1890, is accorded when, by reason of the jDeriod 
which has elapsed since the end of his term of enlistment, the deserter 
could successfully plead the statute of limitation to a prosecution for 
his desertion. This jieriod is complete at the expiration of two years 
from the end of his term of enlistment, exclusive of absences mean- 
while from the United States. But where a soldier, who would have 
been eligible for such release on May 9, 1894, was, in February pre- 
ceding, arrested, brought to trial, convicted, and sentenced to be dis- 
honorably discharged, and was so discharged accordingly, held that he 
was not within the privilege of the general order, and that the release 
could not be accorded him.^ P. 65, 189, June, 1894; C. 4130, May, 
1898; 11508, Nov. 7, 1901; 12563, May 6, 1902; 15257, Jan. 28, 1909. 

XVII B. A soldier who had been dishonorably discharged applied 
for a deserter's release. Held that he does not belong to the class of 
persons for whom it is intended. P. 63, 32, Dec, 1893. 

XVII C. A deserter's release is designed for soldiers actually in 
service. Held therefore that it can not be given to one who was a 
soldier of a volunteer organization during the War of the Rebellion, 
which organization has been mustered out. P. 62, 1, Oct., 1893; 
C. 15460, Nov. 5, 1903. 

XVII D. A deserter's release was requested in the case of a soldier 
who had died. Held that it can not be issued in such a case. P. 52, 
326, Mar., 1892; C. 11850, Jan. 6, 1902; 15154, Aug. 24, 1903; 
15417, Oct. 24, 1903; 15607, Dec. 10, 1903; 17034, Oct. 20, 1904; 
17294, Dec. 24, 1904; 17609, Mar. 21, 1905. 

XVII E. As the deserter's release is issued only to men who can 
successfully plead the limitation of the one hundred and third article 
of war, Tield, that it should not be given where a desertion was com- 
mitted in time of war. C. 96, July 27, 1894; IO4I6, May 24, 1901, 
and July I4, 1909; 11850, Jan. 4, 1902; 6384, A'pr. 30, 1903; 11802, 
May 10, 1905; 15154, Aug. 24, 1903; 12563, July 30, 1909; 15417, 
Oct. 24, 1903; 18023, May 10, 1905; 21367, Apr. 12, 1907. 

XVII F. The purpose of the deserter's release is to release a soldier 
"from liability to arrest, and from trial and punishment by court- 
martial for his desertion." Held that the deserter's release does not 
serve as a discharge from the Army and that the language used in 
describing it in General Orders 55, 1890, viz: "Release from the 
Army," as faulty, as the release is not a discharge certificate and is 
not evidence of discharge, and is not furnished to soldiers.^ P. 52, 
326, Mar., 1892; 61, 430, Sept., 1893; 62, 1, Oct., 1893; 63, 30, Dec, 
1893, and 347, Feh., 1894; C. 13896, Mar. 28, 1903; 21367, Apr. 12, 
1907; 14163, Feh. 4, 1909; 24691, Mar. 20, 1909. 

XVII G. Held that as the deserter's release is not a discharge cer- 
tificate from the Army, it should be prepared in such a way as to 
f>reclude the claim that its delivery operates as an actual discharge 
rom the service. P. 63, 247-354, Feh., 1894; C. 15460, Nov. 4, 
1903; 16064, Mar. 22, 1904; 17807, Apr. 11, 1905; 21367, Apr. 12, 
1907. 

• See Circ. 5, A. G. O., 1894, as to the purpose and effect of the " release." 
2 Circular No. 5, Headquarters of the Army, A. G. O., Mar. 28, 1894, states that the 
deserter's release also relieves the Government from the expense of apprehending those 
deserters who by reason of the one hundred and third article of war can not be tried 
for their desertions and at the same time serves to protect them from the arrest. 



DESERTION XVII H. 425 

XVII H. The proper course for a deserter to pursue in order to 
secure a "Deserter's Release" is to surrender liimself to the military 
authorities at the place nearest to his residence and make apphcation 
to the Adjutant General of the Army for a deserter's release, accom- 
panied by an affidavit setting forth the fact that he has remained 
constantly in the United States since his desertion, supported by 
such other affidavits ^ as he may be able to obtain to establish this 
fact. Thereupon a deserter's release issues as a matter of course 
upon the establishment of these facts. C. 14163, July 11, 1911. 

XVIII A. A question arose as to whether a soldier's desertion, com- 
mitted on October 25, 1898, was or was not in time of war. Held 
that as the desertion had been committed prior to the exchange of 
ratification it was in time of war.^ C. 15417, Oct. 23, 1903; 16064, 
Apr. 21, 1904; 16254, Apr. 28 and July 11, 1904; 17034, Oct. 21, 1904, 
July 30, 1908, and Feh. 11, 1911; 17349, Jan. 5, 1905. 

XVIII B. When the United States is engaged in war under cir- 
cumstances where the theater of operations is outside the territorial 
limits of the United States, held that it is "time of war" at home as 
well as abroad. C. 4050, Apr. 23, 1898. 

XIX A. A soldier was responsible for certain Government property. 
He deserted. The property disappeared at the same time. He was 
apprehended and charged inter alia with stealing the property, and 
acquitted of that offense. Held, that such acc[uittal did not relieve 
him from responsibility for the loss of the Government property as 
the loss was caused by his desertion as found by a board of survey. 
C. 721, Dec, 1894. 

XX A. An officer left liis post on a three days' leave of absence and 
did not return to duty or report himself at the proper time, but 
absconded to Canada with a large amount of Government funds. 
He was subsequently arrested in the United States. Held that he was 
clearly chargeable with the offense of desertion. B. 3, 230, July, 1863. 

XX B. An officer who had become mvolved in debt and was sus- 
pected of embezzlement and fraud and who was about to be 
placed in arrest and obtained by false representations a brief leave of 
absence from his post for the express purpose of visiting a certain- 
named place, was subsec{uently apprehencled at another place much 
more distant than that designated and while rapidly traveling en route 
to a still more remote locality. Held, in the absence of any evidence 
to rebut the presumption thus raised, that he was properJy charge- 
able with having absented himself with the animus of a deserter. 
R. 38, 622, June, 1877. 

XX C. Held that the effects of a commissioned officer who has 
deserted w^Ul be collected the same as those of an enlisted man and 
will be regarded as abandoned and so treated. C. 17191, Dec. 19, 
1904. 

XX D. The President is authorized to drop from the rolls of the 
Army as a deserter any officer who is absent from duty three months 
without leave. (1229, R. S., as amended by act of Jan. 19, 1911 
(36 Stat., 894) .) Held that when the President, acting under this law, 
reaches the conclusion that an officer has deserted, no court can 
review his decision.^ C. 12489, May 1, 1902. 

' See G. O. No. 55, Headquarters of the Army, A. G. O., Washinston, May, 26, 1890. 

2 Exparte Ortiz, 100 Fed. Rep., 955; Ribas y Hijo, 194 U. S., 315. 

3 18 Ct. Cls., 435, Apr. 23, 1883. 



426 DESERTION— DETAIL. 

XX E. Held tliat after the President has dropped an officer's name 
from the rolls pursuant to the authority contained in section 1229, 
R. S., the officer is fully separated from the military service, and, 
being a civilian, there is no question as to the statute of limitations 
running. C. 15752, Jan. 9, lOO-i, and Mar. 16, 1909. 

XX F. An officer was dropped for desertion under the first clause 
of section 1229, R. S. He later applied for a trial under section 1230, 
R. S. Held that the provision of section 1229, R. S., which makes 
such a deserter ineligible for reappointment in the Army, was incom- 
patible with his restoration by action of a court-martial under section 
1230, R. S., and that that section applies only to officers dismissed 
by order of the President under the general power to remove public 
officers appointed by him and frequently exercised in cases of Army 
officers in time of war, but which power in time of peace has been 
removed by the act of July 13, 1866, which was incorporated in the 
Revised Statutes as the second part of section 1229. R. 42, page 44^, 
Dec. 3, 1S79. 

XXII A. Under the system of enlistment in which applicants are 
not enlisted until they reach the recruit depot, if an applicant, after 
having been furnished transportation and subsistence for the journey 
from the recruiting station to the recruit depot, elopes, and does not 
report at the recruit depot, lield that as he has not yet been enlisted 
he is not a deserter, but that he has violated section 36 of the Crimmal 
Code (35 Stat., 1096, act of Mar. 4, 1909) in that he has embezzled 
United States property furnished him for use m the military service.^ 
C. 20694, Apr. 30, 190S, to Aug. 12, 1911. 

CROSS REFERENCE. 

Advising or persuading to See Articles of War LI A. 

Civilian ernployees See Civilian Employees XIV to XV. 

Effect on deposits Sec Pay and Allowances I C 7 a. 

Elements of See Absence II B 1. 

Evidence of. See Articles of War L A. 

Not a discharge See Discharge XIII A 2. 

Previous convictions of. See Discipline XII B 1 a (1). 

Statute of limitations See Articles of War CIII F 1 to 6. 

Time ofivar See Pardon XII. 

Trial for See Discipline III E 3 a. 

Witnesses in See Discipline X A 1. 

DETAIL. 

See Army I G 3 a to c. 

Away, of battalion staff officers See Office IV G. 

College duty See Military Instruction II B 1 to 2. 

To staff See Office III D 1 to 2. 

1 Several men who have thus eloped have been charged with embezzlement in vio- 
lation of sec. 5439, R. S., tried, convicted, and punished. 

See Circular No. 91, War Department, Nov. 17, 1908, for a case which was tried 
in the United States District Court, Northern District of Texas, Mar. 30, 1909. Other 
cases are as follows: In the United States District Court, Eastern Division, Northern 
District of Illinois, July term, 1909; in the United States District Court, Southern 
Division, Western District of Missouri, October term, 1909; in the United States 
Circuit Court, Northern District of Georgia, May 3, 1910; in the United States District 
Court, Western District of Oklahoma, September term, 1910. Convictions were 
secured in all (hese cases and sentences given varyhig in severity from a fine of $100 
and five mouths' confinement to a fine of $1,000, with confinement until paid. 



DETAILED STAFF DISCHAEGE : SYNOPSIS. 427 

DETAILED STAFF. 

Command by See Command V B 4. 

Office in See Office III D to E. 

Army I G 3 a to c. 

Ordnance Department See Army I G 3 b (4) (6) ; (c). 

Rank of officers See Rank I C to D. 

Retirement of officers See Rank I C 2. 

DIET. 

For patients in hospital See Army I G 3 d (8) (c) [1]. 

DIPLOMATIC OR CONSULAR SERVICE. 

Retired officer's ineligibility for See Retirement I G 2 f; 3 a (2) (a). 

DIPLOMATIC SERVICE. 

Official of, to cause deposition to be taken See Articles op War XCI D. 

Retired officer's ineligibility for See Retirement I G 2 f. 

DISAPPROVAL. 

Grounds for, of sentence See Discipline V G 1; XIV E 9 a to b 

Effect of See Discipline XIV E 9 b to c. 

Of acquittal See Discipline XIV E 9 b (2). 

Desertion V E 2. 

Of charge under seventeenth article of war See Pay and Allowances III C 2 d. 

Of conviction of deserter See Desertion V E 1; 3; XIV A 2; A 5. 

Of sentence, same as acquittal See Articles of War XLVIII C 2; 4. 

Retiring board finding See Retirement I B 3 b. 

DISBURSING OFFICER. 

See Public money II to III. 

Bonds of. See Bonds II to III. 

Can not withhold money from contractor to 

pay tax See Tax IV A. 

Congressional relief for See Army I B 6 b. 

Court of Claims, right to enter See Claims XII Q. 

Embezzlement by See Articles of War LXII C 2. 

Forged vouchers See Public Property I F 1. 

Gambling in stocks See Articles of War LXII E. 

Philippine funds See Office IV A 2 d (2) (a). 

Refusing to transfer funds See Articles op War LX A 4. 

State See Militia VI B 1 c to 2; X B; C; E; 

XIV C. 

DISCHARGE. 

I. CLASSIFICATION. 

A. Honorable, Without Honor and Dishonorable Page 4^3 

n. HONORABLE. 
A. Officers. 

1. Unless evidence to the contrary, discharge is honorable. 

2. No reason mentioned, discharge is honorable. 



428 discharge: synopsis. 

n. HONORABLE— Continued. 

B. Enlisted Men — What Necessary to Secure Honorable Discharge? 

1. Unless evidence to the contrary, discharge is honorable. 

2. A deserter may receive an honorable discharge Page 4-H 

a. Policy of War Department as to discharge of deserters. 

3. Soldier in hands of civil authorities may receive an honorable dis- 

charge . 

4. Soldier against whom no derogatory remark on muster roll at muster 

out entitled to honorable discharge. 

5. Soldier sent away from Army without discharge certificate. 
m. WITHOUT HONOR. 

A. Origin Page 435 

B. Discharge Without Honor is Not a Punishment. 

1. Soldier charged with theft. 

2. Soldier charged with sodomy. 

3. Soldier charged with indecent proposals to a girl Page 436 

4. Not to be discharged for offense of which he has been acquitted. 

5. Not to be discharged for offense for which he has been punished. 

a. Exception: Sentence set aside on account of faulty pro- 
cedure. 

C. When Disqualified for Service Physically or in Character 

Through His Own Fault, Discharge Without Honor Not to be 
Given at Expiration of Term op Service. 

D. Soldier in Confinement by Sentence op Summary Court at Expi- 

ration OP Enlistment Not Sufficient Cause for Discharge 
Without Honor. 

E. When Service Not Honest and Faithful, Enlistment May be 

Terminated by Discharge Without Honor. 

F. Cases in Which Discharges Without Honor Have Been Given. 

,1. Enlisted men Page 437 

2. Cadets Page 439 

3. Officers Page 440 

G. Discharge op Organizations Without Honor. 
IV. DISHONORABLE. 

A. Given Only by Sentence of General Court-Martial as Punish- 

ment. 

B. Entails no Disqualification for Civil Employment. 

C. Sentence to Imprisonment in Penitentiary Involves Dishonor- 

able Discharge. 

D. Entails Loss op All Rights Conditioned on Honest and Faithful 

Service. 

E. Terminates Any Existing Sentence to Confinement as a Soldier. 
V. ON CERTIFICATE OF DISABILITY. 

A. Honorable if Disability is in Line op Duty Page 441 

B. Honorable if Disability Existed at Enlistment, But no Fraud 

m Enlistment. 

C. Discharge by Favor Not Conclusive That There Was Not 

Disability. 

D. Of Insane Soldiers. 



DISCHARGE : SYNOPSIS. 429 

VI. BY WAY OF FAVOR. 

A. Illegal Except on Account of Dependent Parent. 

B. Veteran's Discharge. 

C. Dependent Parent. 

1. Given if case comes within spirit but not letter of law. 

2. Not given to general prisoners. 

D. By Purchase. 

1. Law authorizes discretion to President Page 442 

2. Rules in Army Regulations. Privilege may be withheld. 

3. Absence without leave not counted in computing time. 

4. Honorable for naturalization purposes. 

5. As regards character and service treated same as other discharges, 

6. Possible inclusion of Philippine Scouts, matter of policy. 

7. Marine service not counted. 
Vn. BY CIVIL COURTS. 

A. Secretary of War Causes Certificate to be Issued. 

B. State Court Without Jurisdiction to Discharge Page 443 

Vm. CONSTRUCTIVE DISCHARGE. 

A. Recruiting Officer Told a Recruit to go Home and There Await 
Summons, Which Was Never Sent. 
IX. DISCHARGE AT END OF WAR. 

A. Act of April 22, 1898 (30 Stat. 361), Did Not Give Individuals 

Right to Claim Discharge. 

B. General Order 40, 1898, Authorized Discharge at End of War, 

But Gave no Direction in Regard to Character or Travel 
Pay. 

C. Soldier Should Take Advantage of Privilege op General Order 

40, 1898, Within a Reasonable Time Page 444 

D. a Soldier's Waiver Upon Enlistment of Rights Under General 

Oder 40, 1898, op no Effect. 

E. General Order 40, 1898, Not Intended to Relieve Men of Con- 

sequences OF Military Offenses. 
X. DISCHARGE FOR BENEFIT OF THE GOVERNMENT. 

A. The Giving of This Discharge Rests Upon Grounds of Expe- 

diency. 

B. For Convenience op the Government. 
XI. CHARACTER. 

A. Notation of on Certificate. 

1. Refers to character both as man and as soldier Page 445 

2. Regulations relative to board of officers directory only. 

B. Honest and Faithful. 

1. Board of officers called only in case of discharge at expiration of 

term of enlistment. 
a. Soldier in confinement at expiration of term entitled to a 
board. 

2. Consensus of opinion of company commander, board, and convening 

authority required to rate service as ''not honest and faithful." 

3. Secretary of War has discretion to rate service as "honest and 

faithful." 

4. A nonfraudulent enlistment of dishonorably discharged soldier 

does not render ser\'ice "not honest and faithful " Page 446 



430 DISCHAEGE : SYNOPSIS. 

XI. CHARACTER— Continued. 

B. Honest and Faithful — Continued. 

5. If service "honest and faithful, " honorable discharge must be 

given. 

6. Avoiding tour of duty in Philippine Islands renders service "not 

honest and faithful." 

7. Continuing association with a strumpet after orders to stop renders 

service "not honest and faithful." 

8. Arrest, conviction, and confinement by ciA'il court, renders service 

"not honest and faithful." 

C. Objection to Enlistment. 

1. Some of the grounds upon which it may be based. 
Xn. DISCHARGE OF MINOR. 

A. Enlistment of Minor Can be Avoided on That Ground, Only Upon 

Application of Parent or Guardian. 

B. Age, How Shown. 

1. Soldier born in United Slates Page 447 

2. Soldier bom in Bermuda. 

C. Emancipated Minor. 

1. When mai'ried. 
' 2. Parent domiciled outside of United States. 

D. Policy. 

1. Procedure when parent requests discharge of minor son. 

2. Soldier punished for military offenses before application for his 

discharge will be entertained Page 448 

Xm. DATE OF DISCHARGE. 

A. Soldier Entitled to Discharge at Expiration op Term of Enlist- 

ment. 

1. Soldier can not discharge himself. 

2. Desertion does not operate as discharge. 

B. Soldier Held in Service. 

1. Date of actual separation from the service. 

C. Soldier Can Not be Discharged Before Separation from the 

Service. 

D. Soldier Discharged When Notice is Given to Him of His Discharge. 

1. Actual and constructive notice. 

2. Certificate not only means of giving notice Page 449 

3. Case of soldier sick in hospital. 

4. Insane soldiers. 

a. With and without lucid intervals Page 450 

(1) At Government Hospital. 

b. Insane Philippine Scouts in Philippine Islands. 

5. Sentence of death commuted to imprisonment for life — date of 

notice is date of dishonorable discharge. 

6. Soldier in confinement. 

a. By civil authorities. 

b. Soldier awaiting trial. 

7. Soldier sentenced to dishonorable discharge Page 451 

8. Soldier escapes during trial by general court martial, which 

sentences him to dishonorable discharge. 

9. Commissioned officers. 

a. Date of discharge mentioned in order. 

b. Senate fails to confirm appointment of officer. 



discharge: synopsis. 431 

Xm. DATE OF DISCHARGE— Continued. 

E. No Certificate Furnished. 

1. Illegal sentence of general prisoner who had been volunteer sol- 

dier declared null and void after regiment had been mustered 
out Page 452 

2. Soldiers ordered dropped from roll by department commander. 

3. Soldier ordered set at liberty by department commander. 

F. Rule for Volunteers, Including Deserters. 
XIV. CERTIFICATE OF DISCHARGE. ' 

A. Original. 

1. Certificate is legal evidence of discharge. 

2. Soldier in desertion when volunteers were mustered out in Civil 

War Page 453 

3. A\Tio signs certificate? 

4. Beneficiaries under act of Februarj^ 24, 1897 (29 Stat., 593) entitled 

to discharge certificate. 

5. A certificate that lacks signature can later be completed. 

B. Duplicate Certificate. 

1. Case of soldiers who served under assumed names in Civil War. 

2. Erroneous entries made on discharge after its issue. 

3. A parchment duplicate may be furnished when original certificate 

is made on paper. 

4. Section 224, R. S., is limited to soldiers of Civil War Page 454 

C. Second Duplicate Certificate. 

1. A second duplicate may be issued if first is lost or destroyed. 

D. Certificate of Service. 

1. F'umished upon proof of loss of discharge certificate. 

2. Furnished when discharge certificate is rendered illegible. 

3. Soldier absent in Japan when regiment mustered out. 

4. Furnished to medical cadet who lost his discharge certificate. 

5. Furnished man who was, through mistake, unjustly given discharge 

without honor Page 455 

XV. EXECUTED DISCHARGE NOT REVOCABLE. 

A. A Legal Honorable Discharge Not Revocable. 

1. Case of soldier discharged with conditions which were not met 

by Government. 

2. An officer's honorable discharge can not be revoked and a dis- 

honorable one substituted. Similarly a dishonorable discharge 
can not be revoked and an honorable one substituted. (See 
Discharge, XVII A.) 

B. A Legal Dishonorable Discharge Not Revocable Page 456 

C. A Legal Discharge Without Honor Not Revocable. 

1. Even when notice is constructive and man is a prisoner. 

D. Revoking Order Unauthorized and Illegal. 

1. An order purporting to revoke is illegal if discharge be executed. 

a. A discharge leased on mistake of fact as to status of man is 

legal. 

b. Officer discharging soldier ignorant of fact that soldier was 

under charges — discharge legal. 

c. No objection to noting on discharge certificate the fact that 

it was given through error as to fact Page 457 



432 dischaege: synopsis. 

XVI. DISCHARGE MAY BE REVOKED. 

A. When Secured by Fraud. 

1. Soldier secured by fraud a delivery of his discharge held in escrow. 

2. Soldier secured discharge by agreeing to reenlist. 

3. Soldier changed term of enlistment in his descriptive list. 

4. Soldier secured discharge for purpose of accepting position in 

civil life. 

B. Insane Soldier. 

1. When soldier is insane and not in Government Hospital for Insane, 

but under military control Page 458 

2. When not under military control. 

C. When Discharge Given is of Different Class Than Ordered. 

1. Through clerical mistake in preparation of discharge. 

2. Through mistake in interpreting order for discharge. 

D. A Discharge Issued by Incompetent Authority is not Binding 

ON the Government. 
1. Discharge issued by United States Commissioner. 

E. An Order JMay be Issued Revoking a Discharge Before the Dis- 

charge is Executed Page 459 

F. If a Discharge Has Been Issued in Favor of a Man Who is in 

Hands of Civil Authorities it May be Revoked if he is Finally 
Acquitted. 

G. Dishonorable Discharge — Illegal, Sentence Revoked. 

1. Soldier returned to duty without trial. 

2. Soldier brought to trial on original charges. 

3. Soldier discharged without honor. 

4. Status of man same as before trial Page 460 

5. Sentence of court of enlisted men illegal; discharge revoked. 
H. Revoked by Act of Congress. 

XVn. OFFICER. (See also Discharge, XXI.) 

A. Dismissal Not Revocable. 

B. Medical Officer Discharged After Failure to Pass Examination. 
XVm. CADETS. 

A. Dismissal Not Revocable. 
XIX. SECRETARY OF WAR MAY RECALL A DISHONORABLE DIS- 
CHARGE AND ISSUE AN HONORABLE ONE AND CORRECT REC- 
ORDS ACCORDINGLY UNDER ACT OF CONGRESS Page 461 

XX. WHO CAN DISCHARGE. 

A. Revocation by President of Appointment of Officer Amounts 

TO Discharge. 

B. President Can Discharge Officer or Enlisted Man of Philippine 

Scouts When Service is no Longer Required, but not as a 
Punishment. 

C. Department Commander Can Discharge Without Honor Soldiers 

Who are Serving Sentences of Civil Courts. 

D. Certificate of Disability. 

1. Department commander can determine nature of discharge in case 

of disability. 

2. District commander can not discharge on certificate of disability. 

E. Authority Not Granted Commanding General of Philippines 

Division to Discharge Without Honor Men AVho After Promise 
Fail to Reenlist Page 462 

F. A Court-Martial Can Not Discharge Soldier. 



DISCHARGE I A. 433 

XXI. DISCHARGE OF COMMISSIONED OFFICER. (See also Discharge, 
XVII.) 

A. An Officer Failed on Examination and was Dismissed, Which 

WAS, IN Effect, an Honorable Discharge. 

B. Disability May be Proven Although Officer Not Discharged on 

That Account. 
XXn. A DISCHARGE TERMINATES MILITARY JURISDICTION OVER A 
SOLDIER. 

A . An Honorable Discharge and a Discharge Without Honor Relate 

TO Current Enlistment. 

B. A Dishonorable Discharge Covers All Unexpired Enlistments. 
XXm. OF SEAMEN IN THE TRANSPORT SERVICE. (See Civil Employees.) 
XXIV. FROM CIVIL SERVICE. (See Civil Employees.) 

XXV. POST NONCOMMISSIONED STAFF OFFICER. 

A. Summary Discharge. 
XXVI. OF ALIEN. 

A. Will Not be Given to Enable Alien to Return to Native Land 
TO Perform Military Duty Page 463 

I A. The classification of discharges has never been assumed by 
Congress, l^ut has been left by it to the Executive branch of the Gov- 
ernment. At present tliere are three kinds of discharges expressly 
recognized, to wit : The honorable, the dishonorable, and the discharge 
without honor. C. 2731, Nov. 9, 1896; 15358, Oct. 9, 1903; 20754, 
Nov. 23, 1906; 23259, Apr. 9, 1909; 25915, Dec. 10, 1909. 

II A 1. An officer failed to pass a satisfactory examination as to his 
qualifications as an officer before an examining board duly appointed 
by the department commander and his commission was revoked by 
order. Held that his discharge was an honorable discharge in accord- 
ance with this rule, viz, in the absence of express evidence that a dis- 
charge was given on account of unfitness for the service for which he 
was culpably responsible, or on account of fraud in enlistment, or when 
the person discharged was in a status of dishonor, i. e., in confinement 
under the sentence of a general court-martial or of a civil court, it 
should be held to be honorable. C. 270, Sept. 28, 1894. 

II A 2. An officer tendered his resignation without stating any 
reason therefor and it was accepted and the officer discharged without 
any reason being stated. Held that the discharge was honorable. C. 
21 70, Apr. 20, 1896; 2336, June 15, 1896; 3569, Oct. 4, 1897. 

II B. Held, that to entitle an enlisted man to an honorable discharge 
he must have rendered the honest and faithful service stipulated for 
in his enlistment contract, and at the instant of his separation from the 
military service must have occupied a status of honor, C. 6636, 
July 12, 1910. 

II B 1 . On a question whether a discharge by order (summary) 
was of the class designated as not honorable, i. e., "without honor," 
held that in the absence of express evidence that such discharge was 
given on account of unfitness for the service for which the person 
discharged was culpably responsible, or by reason of fraud m the 
enlistment, or when the person at the time of his discharge was in a 
status of dishonor, i. e., in confinement under the sentence of a general 
court-martial or of a civil court, the discharge should be deemed hon- 
orable. C. 270, Sept., 1894; 15358, Oct. 9, 1903; 822, Mar. 8, 1904. 

93673"— n 28 



434 DISCHARGE II B 2. 

II B 2. The fact that a soldier has been a deserter does not preclude 
his receiving an honorable discharge, if either he be restored to duty 
without trial, or having been tried and sentenced, he yet, by reason of 
his imprisonment being fully executed or being remitted before the 
end of his term, is returned to duty and is in the performance of faith- 
ful service when his term is completed. An honorable discharge then 
given to him is an authoritative declaration by the Government that 
he leaves the military service in a status of honor. Thus honorably 
discharged he can not, by reason of his having formerly deserted, be 
deprived of any rights to pay, allowances, or bounty usually incident 
upon honorable discharge.^ R. 26, 484, Mar., 1868; P. ^3, 48, Sept., 
1890; C. 902, Feb., 1896; 15639, Dec. 19, 1903; I6644, July 25, 1904. 

II B 2 a. A soldier deserted and, after apprehension, was convicted 
and given a punishment less than dishonorable discharge. Upon 
'question being raised as to the character to be given him upon his 
discharge, held that if the soldier's service should continue honest and 
faithful to the close of his term of enlistment he might be discharged 
with the remark: "Service honest and faithful," and the further 
remark: "No objection known to his reenlistment. " Held further 
that it is not the policy of the War Department to place an insuper- 
able barrier to a man's reformation b}^ holding that no matter how 
honest and faithful his later service may be, a fault once committed 
can not be atoned for, and attention invited to the fact that Congress 
intended that even general prisonere should have an opportunity to 
redeem themselves and be allowed to return to an honorable career, 
as evidenced by section 1352 R. S. (act of Mar. 3, 1873, 17 Stat. 583), 
which permits the honorable restoration to duty of general prisoners 
in case the same is merited, which law was enacted at a time when dis- 
honorable discharge was not given until after the confinement por- 
tion of a sentence had been executed. C. 15639, Dec. 19, 1903. 

II B 3. A soldier was turned over to the civil authorities for trial, 
it appearing that at least six months would elapse before his case 
could be determined, a statement having been made that the evidence 
would undoubtedly lead to his conviction. Held, that there was no 
legal objection to giving him an honorable discharge at end of enlist- 
ment. C. 9819, Feb. 12, 1901. 

II B 4. Company K, Fifth Missouri Volunteer Cavalry, was mustered 
out during the Civil War on account of the mutinous conduct of some of 
its members. The muster roll contains remarks opposite the names 
of 20 of them, showing complicity in the mutinous conduct. Held, in 
the case of a soldier of that company against whom no derogatory 
remarks are made on the record, that he is entitled to an honorable 
discharge. C. 9230, Nov. 5, 1900. 

II B 5. A soldier immediately after enlistment w^as imprisoned on 
suspicion of being a deserter and "bounty jumper." He was subse- 
quently released and sent away from the Army without a certificate 
of discharge. Keld, that the soldier was discharged, and upon satis- 
factory proof being furnished that the suspicion against him was 
erroneous, held, further, that his imprisonment during the whole 
of his service, being through no fault of his own, did not deprive 
him of his right to a certificate of honorable discharge. It was 
recommended that one be issued to him. C. 1916, Dec. 28, 1895. 

' This opinion is qiioted and adopted by the U. S. Supreme Court in United States 
V. Kelly, 15 Wallace, 34, 36. 



DISCHAEGE III A. 435 

III A. The discharge without honor is given in the cases first \ 
specified in Circular 15, Pleadqiiarters of the Army, l^ES,^ but this \ 
circular did not create such discharge; it merely gave it a name. 
Before the issue of the circular and as far back as the Civil War this 
kind of discharge was out of necessity resorted to. Its name is only 
important as a recognition of a discharge, not technically dislionor- 
able, and not honorable in fact. R. 10, 286, Sept., 1864; C. 2298, May 
14, 1896; 10141, Ajyr. 2, 1901. It might not be going too far to say 
that when soldiers were summarily "dishonorably discharged" 
during the Civil War the order was so worded simply because the 
soldier had done something to disgrace the service and could not be 
in fact honorably discharged. P. 60, 24I, June, 1893. Thus where 
a volunteer soldier under arrest for desertion was "dishonorably 
discharged" by order on account primarily of the desertion, held, 
that wliile his discharge was not technically dishonorable it was what 
is now called a discharge \\dthout honor, and therefore not honora- 
ble. C. 2128, Mar. 17, 1896. The term also covers the summary 
dismissal of an officer. P. 62, 403, Mar., 1892; C. 1503, Aug. 3, 1895. 

Ill B . The established rule and policy of the War Department is h 
not to discharge without honor men charged with offenses susceptible | 
of being proved befoie a court-martial. C. 24OO4, Apr. 5, 1909; June ' 
11, 1910. Held, that discharge without honor is not a punishment ^ 
(P. 43, 176, Oct., 1890; 0. 17964, May 18, 1905; 9362, Nov. 24, 1906; 
25915, Dec. 10, 1909) and can not be used for summarily ridding the 
service of undesirable soldiers who, by their misconduct, have ren- 
dered themselves liable to trial by court-martial. Further held, 
that tlie fact that the evidence to convict is difficult to secure is not 
sufficient to set aside the estabhshed pohcy of the War Department 
as regards this form of discharge and to deny the men involved an 
opportunity to make a defense to the charges brought against them, 
a 24004, Aug. 8, 1910, Dec. 9, 1910; 19547, Apr. 19, 1906; 24198, 
Dec. 7, 1908; 25833, Feb. 28, 1911; 28556, June 19, 1911. 

Ill B 1. The commanding general, Army of Cuban Pacification, 
requested authority to discharge without honor a sergeant of the 
Signal Corps on account of misconduct, viz, cohabitation with a 
woman of ill repute, and probably being an accomplice in the theft 
of ft large sum of money. The soldier denied the alleged wrongdoing. 
Held, that to discharge him summarily without honor, without giving 
him an opportunity to present a defense, would appear to work an 
injustice and to establish a dangerous precedent. C. 22272, Oct. 25, 
1907, and June 7, 1910. 

Ill B 2. Certain soldiers were charged with the crime of sodomy. 
Held that in justice to them they should not be discharged without 
honor but should be tried bv a competent court by whom the facts 
should be investigated. C.^ 19547, Apr. 19, 1906; 19539, Apr. 18, 
1906. 

^ (a) WTien a soldier is discharged without trial on account of fraudulent enlistment. 
(b) \Mien he is discharged without trial on account of having been disqualified for 
service, physically or in character, through his owti fault, (c) ^\^len the discharge 
is on account of imprisonment under sentence of a civil court, (d) Wlien at the time 
of the soldier's discharge, at or after the expiration of his term of enlistment, he is in 
confinement under the sentence of a general court-martial which does not provide for 
dishonorable discharge. 

2 See U. S. V. Kingsley, 138 U. S., 87, and Reid v. U. S., 161 Fed. Rep., 469. 



436 DISCHARGE III B 3. 

Ill B 3. Recommendation was made by a post commander that a 
Holdier be discharged without honor on account of having made 
indecent proposals to a young girl. Held that it would not be proper 
to so dischai-ge him unless there were no doubt of liis guilt. C. £0615, 
Feh. 2, 1909 and Aug. 27, 1909; 24OO4, Sept 2, 1911. 

Ill B 4. A soldier was tried by court-martial for offenses which, 
upon conviction, would have justified his discharge, but having been 
acquitted by the coin-t, held, that his discharge without honor, pri- 
marily on account of said alleged offenses would not be proper. C. 
1058, Feh. 1895; 24OO4, Jan. 21, 1909. 

Ill B 5. A soldier was tried by court-martial for offenses which, 
upon conviction, would have justified his discharge. He was given 
a punishment less than discharge. Held, that his discharge without 
honor primarilv on account of said alleged offenses would not be 
proper. C. 1512, July 2, 1895; 15533, Nov. 24, 1903; 24103, Dec. 10, 
1908; 25915, Dec. 10 and 22. 1909. 

Ill B 5 a. Although it is improper to discharge a soldier without 
honor on account of charges for which he has been tried and con- 
victed, lield that the discharge without honor may be used in the case 
of a soldier who has been convicted of desertion, and the reviewing 
authority, acting not on the merits of the issue but because of defects 
in procedure, etc., sets aside or mitigates the sentence. C. 25915, 
Dec. 10, 1909. 

Ill C. A sokher who had been tried and convicted numerous tirnes 
by court-martial during his term of ser^dce was at the expiration 
thereof given a certificate of discharge "without honor, " for, as stated 
by his company conunander, '' being disqualified for service on account 
of character through his own fault. " Held, that the condition referred 
to under which a soldier may be discharged without honor, to wit, 
"when he is discharged without trial on account of having become 
disqualified for service, phj^sically or in character, through his own 
fault," does not apply to the case^of a soldier discharged by reason of 
expiration of term of service; but that the previous convictions could 
properly have been considered by the board of officers provided for 
by the regulations in determining whether the soldier's service had ^ 
been honest and faithful and upon an approved fmding that it had not -^ 
been, the discharge without honor could have been given. P. 65,'40, 
May. 1894. 

Ill D. A soldier was in confinement in the guardhouse at the end • 
of his term of enlistment under sentence of a summary court. Held 
that he should not be discharged without honor for this reason, as 
the regulation apphes onlv to sentences of general courts-martial. C. 
12439^, Apr. 17. 1902, Jan. 31, 1903, July 25 and Aug. 3, 1904. 

Ill E. If a soldier commits an offense of so serious a character as to 
warrant his discharge, by way of punishment, charges are preferred, 
and the case is tried by general court-martial. Although not having 
committed an ofi'ense of sufficient gravity to warrant his trial by court- 
martial, the conduct of a soldier may be such as to warrant the termina- 
tion of his enlistment contract because he has not served honestly 
and faithfully. Held, that in such a case, when reasonable efforts 
have been put forth with a view to the correction of his faults, his 
enhstment contract may be annulled in the manner prescribed in the 



DTSCHAEGE III F 1. 437 

fourth article of war, by a discharo:e without honor. C. 20151^, Nov. 
23, 1906; 25915, Dec. 10, 1909. 

Ill F 1. It will be instructive to note some of the reasons for which, 
based on the opinions of tliis office, discharges Avithout honor have 
been given. 

In cases of soldiers: 

An established case of desertion, where the soldier was not fit for 
service and it was not advisable to bring the case to trial. (\ 1^8.14), 
Aug. 23, 1898: 5327, Nov. 15, 1898; 5676, Jan. 2^, 1899; 6210, Apr. 
11, 1899; 6593, June 15, 1899; 7624, Jan. 31, 1900; 18360, Aug. 1, 
1905; 15533, Apr. 1, 1907: 23491, June 24, 1908; 23643, July 15, 
1908. 

For being in a penitentiary under the sentence of a civil court at the 
expiration of his term of enlistment. C. 5312, Nov. 12, 1898; 21785, 
July 12, 1907; 23066, Apr. 11, 1908. 

For wortUessness. C. 5837, Feb. 8, 1899; 5981, Mar. 14, 1899; 
15065, Aug. '5, 1903. 

Sentenced to confinement in a worlchouse. C. 8555, July 5, 1900. 

For expressing sympathy, in time of war, with our enemies. C. 
9744, Feb. 1,1901. 

For disease contracted through misconduct before entering into the 
service. C. 10922, Aug. 3, 1901. 

For refusing to permit himself to be vaccinated. C. 11753, Dec. 12, 
1901. 

Conviction by civil courts of burglai'y with intent to commit theft. 
C. 12079, Feb. 20, 1902. 

Convicted of homicide by civil courts in Cuba, and later pardoned. 
C. 12631, May 27,1902. 

For inefficiency. C. 15035, Sept. 16, 1903. 

For not being a iit associate for other soldiers. C. 15834, «^«^- ^8, 
1904. 

Convicted of theft hj civil courts and given a probationary sen- 
tence . a 201 58, Ju III 31,1 906; 201 53, July 1 8, 1 907; 23259, Sept. 1 6, 
1908, Mar. 16, 1909. ' 

Convicted of theft by civil courts. C. 17213, Dec. 5, 1904, Mar. 5, 
1908; 23259, Juru' 23, 1910; 23259-A, July 12, 1911. 

Sentenced to imprisonment b}^ civil courts. C. 17373, July 21, 
1908; 23259, May 20, 1908, Jan. 14, July 2 and 30, 1909. 

For alcoholic dementia. C. 19547, Dec. 14, 1909. 

For unfaithful service. C. 20497, Oct. 13, 1906. 

For writing an obscene and insulting letter to a woman. C. 20615, 
July 1,1 9 10. 

For being in the hands of the civil authorities at the expiration of 
liis enlistment. C. 22526, Dec. 24, 1907. 

Held by civil authorities for seduction, admits guilt. C. 22612, 
Mar. 12, 1908; 23259, June 8,1910. 

For indecent exposure of person on a street car, for wliich he was 
sentenced to imprisonment. C. 23259, June 25, 1908. 

Incomgibility and drinking to excess. C. 2400 4, Oct. 21, 1908. 

For introducing cocaine into prison and prison wards of Pacific 
branch of United States military prison. C. 24004, Apr. 5, 1909. 

Morally incapacitated from rendering honest and faithful service. 
a 24004, Dec. 22, 1910. 



438 DISCHAEGE III F 1, 

Totally unfit to he a soldier, and should never have been enlisted. 
Service did not justify an honorable discharge. C. 2IfiOJj., June SO, 
1911. 

For attempt by a sane man to commit suicide. C. 25962, Dec. 18, 
1909. 

For being insane at time of enlistment wliile on parole from an 
insane asylum as improved. C. 26566, Apr. 19, 1910; 24-004, Aug. 24, 
1911. 

Sentence which contained dishonorable discharge set aside on 
account of fatal defect in the record. C. 11998, Feb. 6, 1902; 13209, 
Aug. 30, 1902; 13210, Aug. 29, 1902; 25915, Dec. 10, 1909. 

A sentence contained dishonorable discharge, but the court was not 
sworn. C. 6160, Apr. 24, 1899. 

A sentence of confinement extending heyond the soldier's term of 
enlistment did not contain dishonorable discharge. C. 6776, July 22, 
1899. 

Sentenced to disJionoraUe discharge when the code of penalties did 
not justify such sentence. ('. 8705, Aug. 2, 1900. 

Sentenced to confinement and dishonorable discharge, and, through 
error, the mitigation intended for a portion of the confinement was 
held to set aside the dishonorable discharge. G. 9369, Nov. 28, 1900, 
Aug. 28, 1901. 

Sentenced to confinement in a penitentiary and paroled. C. 23259, 
Sept. 16, 1908. 

For highway robbery and aiding a desertion to the enemy, when 
protected from trial by the statute of limitations. C. 12025, Feh. 6, 
1902. 

After expiration of term of enlistment, wMe serving a sentence of 
confinement not involving dishonorable discharge, it was discovered 
that the sentence was null and void. C. 13210, Aug. 29, 1902. 

Convicted of mitrder, in the Philippine Islands, under the fifty- 
eighth article of war, but sentence not approved until after the Presi- 
dent had proclaimed peace by his proclamation of July 4, 1902. C. 
13653, Feb. 18, 1903. 

Discharged by order of the civil courts while in confinement under 
charge of desertion. C. 13818, Dec. 18, 1902. 

From preceding enlistment, in case of firaudulent eiilistment with- 
out a discharge from said preceding enlistment. C. 20314, Aug. 31, 
1906, Feb. 17, 1909. 

Disqualification for service, as to character, by reason of his bad 
habits. C. 22487, Dec. I4, 1907; 20615, Dec. 23, 1910. 

Convicted of larceny of clothmg, but on account of failure of judge 
advocate to prove the value of the articles stolen, findings disap- 
proved. C. 22902, Mar. 18, 1908. 

Convicted before a United States commissioner of TciUing game m. 
Yellowstone Parle, and sentenced to pay a fine, and confined, on 
refusal to pay the fine or to take the pauper's oath. C. 23259, A, 
Jan. 27, 1911. 

For bemg ignorant, lazy, and dirty to the pomt oifilthiness, with- 
out a single soldierly characteristic. Discharge requested b}'' father 
on ground of mental unsoundness, etc., but surgeon reported no evi- 
dence of mental unsoundness. C. 23653, Aug. 3, 1908. 

For participating, during a previous enlistment, in a loot of Gov- 
ernment property at a military station. C. 24-004; Apr. 4 ami 26, 1911. 



DISCHARGE III P 2. 439 

A soldier during the Civil War was tried and convicted, the ofl'enses 
being eludmg the guards, passmg through the lines and robbing tlie 
house of a woman 6 m'des from camp of jewelry to the value of about 
$800. He was sentenced "to be confined in some Tnilitary prison for 
a period of ten years, to forfeit all pay or allowances that may be due 
him and to w^ear a ball and cham attached to his leg two months of 
each year." He did not receive a dishonorable discharge. Held that 
his status was that of an enlisted man undergomg sentence of impris- 
onment lawfully imposed by general court-martial, and as such a 
person does not occupy a status of lionor at the instant of his separa- 
tion from the military service he is regarded as liavuig been dis- 
charged without honor. C. 17398, Jan. 13, 1905. 

A department commander disapproved a sentence of dishonorable 
discharge and instructions were issued returning the man to duty. 
Before the disapproval was published in orders the department com- 
mander reconsidered the matter, and as the record was still in his 
possession he approved the sentence and ordered it executed, and 
this approval was published in orders. Held that the efl'ect of the 
later approval by the department commander was to separate the 
soldier from the service under circumstances which are not honorable 
but at the same time his discharge is not a dishonorable one, and it 
should be treated as a discharge without honor. C. 11509, Nov. 8, 
1901. 

It developed that a deserter was absent in a sanitarium undergomg 
an operation of trepanning the skull, to remove the results of an 
injury he had received 'prior to enlistment, and that during his enlist- 
ment he had been subject to epileptic attacJcs. Held that he should 
be summarily discharged without honor. C. 16017, Apr. 7, 1904. 

Held that a soldier who believes in the overthrow of organized 
society, as now constituted should be discharged without honor. 
a 24004, Dec. 26, 1911. ^ 

III F 2. Held that the disclmrge of a cadet from the United States 
Military Academy, m 1862, for demerits m excess of the limit fixed, 
was what is now kno^^^l as a discharge without honor. C. 2533, Aug. 
17, 1896. Similaiiv held m the case of a summary dismissal of a cadet. 
C. 2533, Aug. 17, 1896. 

Ill F 8. In cases of officers: A volunteer officer was summarily dis- 
missed on account of unfitness caused hy his own fault. Held, that 
his discharge was without honor. P. 52, 403, Mar. 1892. Similarly 
held where the officer w^as summarily ''dropped" for absence without 
leave. P. 4^, 389, Apr., 1891. Similarly held m the case of a 
volunteer officer who was summarily dismissed by the governor of 
his State, under authority conferred by the President, for "having 
failed to pass a satisfactory examination before the examming 
board," which action was recommended by the board, as the officer's 
conduct during his examination "was contemptuous and insulting 
in the extreme, evincing not only his incompetency as an officer, but 
an utter lack of even the smallest qualification of a gentleman." 
C. 1789, Oct. 18, 1895. Similarly held m the case of an officer who 
was summarily discharged wliile awaiting confirmation of a sen- 
tence of dismissal for ''quitting his guard." C. 9335, Nov. 26, 1900. 
Similarly held m the case of an officer who hj fraud accomplished his 
7nuster-in, and who was dismissed by order of the President under 



440 DISCHARGE III G. 

section 17 of the act of Jul}' 17, 1862 (12 Stat. 594). C. 16822, Sept. 
2, 1904. 

III G. A company* of volunteers having in 1862 refused to ])ioceed 
to a certain point when ordered to go there, was subsequently duly 
mustered out because of its refusal to obey the order. Held that the 
members of the company were discharged without honor. C. 1915, 
Dec. 1895. Similarly held in the case of a company durmg the Civil 
War which was "mustered out and discharged because it refused 
to serve as the authorities of the Government then in charge of mat- 
ters relating to it held that it ought to serve." C. 1915, Dec. 28, 1895. 

IV A. A dishonorable discharge is a discharge given pursuant to 
the sentence of a general court-martial when specihcally awarded by 
or necessarily involved in such sentence. P. ^2, 267, Aug., 1890; 
p. 5870, Feb. 21, 1899, and 7102, Oct. 5, 1899. Bemg a punishment, 
it can only be authorized by sentence of a court-martial after trial 
aiKl conviction, and no executive or military official (except in 
executing such a sentence) can legall}^ give or order such discharge. 
P. 36, 334, Nov., 1889; 56, 220, Oct., 1892; 60, 95, June, 1893. 
And when a soldier is sentenced by court-martial to imprisonment, 
m a penitentiary and the sentence does not also direct dishonorable 
discharge, it nevertheless involves such discharge.^ C. 1226, Apr , 
1895. 

W IV B. A dishonorable discharge entaUs per se no disqualification 
for civil employment under the United States. V R. 8, 91, Mar., 1864; 
28, 250, Nov., 1868; 31, 296, Apr. 1871; 34, 623, Nov., 1873. 

IV C. A soldier was sentenced to imprisonment in a penitentiary 
and the sentence did not direct that lie should be dislionorably dis- 
charged. Held that it mvolves a dishonorable discharge nevertheless 
for the reason that the dishonorable status of confinement m a 
penitentiary is incompatible with the honorable status of a soldier. 
C. 1226, Apr. 25, 1895; 12623, May 15, 1902. 

IV D. Where a soldier is dishonorably tlischarged from tlie militaiy 
service in the oj^eration of a sentence of court-martial, tlie opera- 
tion of such discharge is to rescind the soldier's contract of enlistment, 
and in the operation of such rescission all contingent rights and bene- 
fits, present and future, which are conditioned upon honest and 
faithful service on the part of the soldier fall with it. C. 27073, 
July 22, 1910. 

IV E. So where a soldier, while under a sentence of confmement 
for a term less than the remammg term of his enlistment (imposed 
without dishonorable discharge), was for a further oli'ense tried, con- 
victed, and sentenced to dishonorable discharge and imprisonment, 
and was thereupon duly discharged accordingly, Tield that the period 
of the pending confLaement under the iirst sentence was thereupon 
terminated, leaving to be executed, after the discharge, only the con- 
finement adjudged by the second sentence. R. 4^, 576, June, 1879; 

* In 1906 three companies of the Twenty-fifth Infantry were discharged without 
honor as a result of the shooting affray at Brownsville, Tex., Aug. 13, 1906. On a 
test case, held that the discharge was legal. (Reid^). U. S., 161 Fed., 469, May 14, 190S.) 

2 This was the practice during the C'ivil War. But it is now the practice in such 
cases to specifically adjudge dishonorable discharge to precede the imprisonment. 

3 Sec. 2 of the act of August 1, 1894 (28 Stat., 216), provides that "no soldier shall 
be again enlisted in the Army whose service during his last preceding term of enlist- 
ment has not been honest and faithful." 



DISCHARGE V A. i41 

P. 61, 424, Sept., 1893; C. 2376, 2762, Oct. and Nmh, 1896; 11393, 
Mar. 6, 1902; 12402, Apr. I4, 1903; 19972, June 27, 1906; 21722, 
July 9, 1907. 

V A. If during his term of enlistment a soldier becomes incapable 
of rendering service, on account of disability contracted in the line 
of duty, he is granted a discharge on a surgeon's certificate of dis- 
ability. Held that the discharge so granted is honorable. C. 20754, 
Nov. 23, 1906, and Mar. 30, 1908. 

V B. A soldier was discharged on surgeon's certificate of disability 
by reason of tertiaiy syphilis existmg at the time of enlistment. 
Held, on a question as to the character that should be entered on his 
discharge certificate, tliat as the disability was not due to any fault 
or misconduct of the soldier and it does not appear that there was 
any fraud m the enlistment, he should be given an honorable dis- 
charge. C. 3540, Sept. 22, 1897. 

V C. Tlie question arose as to whether or not a soldier was dis- 
charged by way of favor or because of disability. Held that he was 
discharged by way of favor, but that disability may have existed and 
may be proved.^ ^ C. 10396, May I4, 1901. 

V D. A certain certificate of disabihty was made out m favor of 
a soldier who was msane m a liospital and the certificate of discharge 
delivered to the supermtendent of the hospital. Held that as the 
soldier was insane he was mcapable of receiving or of being charged 
with notice of the fact of discharge, and that his connection with the 
military service had not been severed and the certificate of discharge 
issued m his case was moperative. Further held that he should be 
contmued in service until his discharge had been ordered by the Secre- 
tary of War in pursuance of his authority to discharge soldiers Mdio 
were patients at the Government Hospital for the Insane. C. 15403, 
Oct. 24, 1903: 20066, Jan. 18, 1906. 

VI A. Held, that discharges by way of favor as distinguished from 
purchase are illegal and will not be granted except in case of dependent 
parent after one year's service of the soldier. Held further that a 
soldier shall not be discharged by way of favor until he shall have 
served one year.^ C. 15717, Dec. 28, 1911. 

VI B. A soldier served nearly 10 years as an enlisted man and 
about 3 years as a commissioned officer, making a total service of 
about 12 years and 8 months. Held, that although he could not be 
discharged by way of favor on account of having served 12 years as an 
enlisted man, that the character of his service justified his being 
discharged by way of favor. C. 12607, May I4, 1902. 

VI C 1. A soldier's father was declared insane, leaving his mother 
and smaU sister without any support. Held, that although the facts 
do not bring the case within the letter of section 30, act of February 2, 
1901 (31 Stat., 756), they bring it within the spirit of that act, and 
that it would be proper for the Secretary of War to decide that the sol- 
dier's discharge by way of favor would subserve the public interest, 
which action was recommended. C. 16773, Aug. 19, 1904; 18329, 
July 21, 1905. 

VI C 2. Section 30 of the act of February 2, 1901 (31 Stat., 756), 
provided that an enlisted man could after one year's service, should 

' See Circular, War Department, May 22, 1901. 

^ See G. O. 90, War Department, Washington, June 30, 1911, pars. 8 and 9. 



442 DISCHARGE VI D 1. 

either of his parents die leaving the other solely dependent upon him 
for support, upon his own application to the Secretary of War 
accompanied with proof of such condition, be honorably discharged. 
Held, that this law is not appHcable to general prisoners. C. 16428, 
June 28 190A. 

VI d'i. Section 4 of the act of June 16, 1890 (26 Stat., 158), 
authorizes the President, in time of peace, in his discretion and under 
such rules and upon such conditions as he shall prescribe, "to permit 
any enlisted man to purchase his discharge from the Army." Held, 
that under this section the President could permit a soldier to pur- 
chase his discharge, even if his service had not been honest and faithful. 
P. 63, 373, Feh., 1894; C. 1340, May 10, 1895. 

VI D 2. The rules and conditions prescribed under the act of 
June 16, 1890 (26 Stat., 158), are pubhshed in the Army Regulations, 
under which the granting of discharges is discretionary. Held, that 
although in 1900 active operations against an enemy were being 
conducted only in the Pliilippine Islands, if it was deemed for the 
best interests of the service not to do so the then existing conditions 
warranted withholding of the privilege and purchase of discharges 
within the territorial limits of the United States as well as in the 
Philippines.! C. 7617, Jem. 27, 1900. 

VI D 3. As the enactment wdiich authorizes an enlisted man to 
secure his discharge by purchase is intended to apply only to a meri- 
torious case, held, that the period during which a soldier was absent 
without leave would not be included m computing the necessary 
length of service to render him eligible to purchase his discharge. 
C. 22731, Feb. 10, 1908. 

VI D 4. Held, that a discharge by purchase is an honorable dis- 
charge within the meaning of section 2166, U.S., which section waives 
the declaration of the intention to become a citizen in the case of an 
honorably discharged soldier. C. 22923, Mar. 19, 1908. 

VI D 5. Held, that a discharge by purchase stands on the same 
footing as any other form of discharge in all matters having to do 
with its execution, including the preparation of a statement of char- 
acter and the d-etermination of the service rendered as honest and 
faithful or otherwise.- C. 27037, July 15, 1910. 

VI D 6. The Pliilippuie wScouts are a part of the Army, section 
36 of the act of February 2, 1901 (31 Stat., 757). J?eM, that they 
are brought withm the scope of section 4, act of June 16, 1890 (26 
Stat., 157), which authorizes discharge by purchase. Discharges by 
purchase were forbidden outside the continental limits of the United. 
States in War Department orders, and the question of whether they 
shall be mcluded is a matter of expediency and not of law. C. 18157, 
June 14, 1905, and Sept. 1, 1911. 

VI D 7. A soldier who had had previous service in the Marme 
Corps applied for discharge by way of purchase before he had served 
one year m the Army. Held that he was not entitled to purchase his 
discharge as his Marme Corps service could not be held to be service 
m the Ai-my. C. 18391, Aug. 7, 1905. 

VII A. A soldier was ordered released from the military service by 
the civil courts on a writ of habeas corpus. Held, that in that case 

1 The price fixed at date of discharge governs (XIV Oorap. Dec, 192, Oct. 4, 1907). 

2 See G. O. No. 90, War Department, Washington, June 30, 1911. 



DISCHARGE VII B. 443 

and in similar cases the Secretary of War should cause a discharge 
certificate to be issued. C. 2739^ Nov. 1/^, 1896. 

VII B. \^Qiere a State court on habeas corpus proceedings ordered 
that a soldier in the military service of the United States be dis- 
charged therefrom, held that as the court was without jurisdiction in 
the matter its order was absolutely void and without effect as a dis- 
charge of the soldier from the service. P. 32, 313-319, May, 1889; 
C. 394, Sept., 1894. 

VIII A. A man enlisted July 23, 1898, for the Eighth Infantry 
(white). Three days later the recruitmg officer discovered that he 
was colored, reported the fact to The Adjutant General's Office, 
making application for his discharge, and told the soldier to go to 
his home and remam there until sent for. A few days later the 
recruitmg officer was relieveil from duty at that station, so that his 
comxection mth the case ceased. Owuig to volume of busiuess m 
The Adjutant General's Office, the case was not reached for a con- 
siderable period of tune. An mquiry was made of the commanding 
officer if this soldier was mth the regiment and if so directmg his 
immediate discharge with travel pay. The commandmg officer, 
Eighth Infantry, replied that no one with the name given belonged 
to the regiment. Telegram was then sent to the officer who enlisted 
the man, asking what disposition was made of the record, and the 
papers filed to await repty. No reply was ever received, and the 
case so remamed untU discovered by clerical examination for perfec- 
tion of the records. The man had never been with the regiment, 
nor had he been formally discharged. Held that as the soldier had 
remamed at his home for over three years since being sent there by the 
recruitmg officer, without makmg any claim for pay or allowances, 
or communicating with the War Department m regard to the status 
of his case, it was mferred that he understood that he was to be dis- 
charged, and that his discharge took effect on the date when he was 
sent to his home. C. 11166, Sept. 6, 1901. 

IX A. The act of April 22, 1898 (30 Stat. 361), provided that "at 
the end of any war in which the United States may become mvolved 
the Army shall be reduced to a peace basis by the * * * honor- 
able discharge or transfer of supernumerary enlisted men." Held that 
particular enlisted men could not claim a right under this law to be 
discharged. The provision is directed to the President and makes it 

•his duty to reduce the Army by the means mdicated, and of course 
he, through the officers of the Army, will select the men to be dis- 
charged. C. 5085, Oct., 1898. This act further provided that all 
enlistments for the Volunteer Army should be for the term of two 
years unless sooner terminated and that aU officers and men com- 
posing said army should be discharged when the purposes for which 
they were called into service shall have been accomplished or on the 
conclusion of hostilities. Held that this latter provision made it 
the duty of the President to disband the Volunteer Army when the 
occurrences named took place, but did not give mdividuals the right 
to claim discharges before the end of the two years for which they 
enlisted. C. 4822, Aug., 1898; 4891 and 4897, Sept. 1, 1898. 

IX B. General Orders, 40, Adjutant General's Office, of 1898, pro- 
vided "that men enlisted or reenlisted durmg the war may be 
informed that they will be granted their discharges if desired at 
the close of the war upon their individual applications." Held that 



444 DISCHARGE IX C. 

this order simply authorized the discharge on their own apphcation 
of men who had enlisted diirmg the war, leaving the character of 
each discharge and the c{uestion of travel pay to be determmed by 
the law and regulations on the subject. C. 6569, June, 1899. 

IX C. General Orders No. 40, Adjutant General's Office, 1898, pro- 
vided that: "Men enlisted or reenlisted in the Regular Army during 
the war may be informed that they may be granted their discharges 
at the close of the war upon their individual applications." Held 
in a particular case that the soldier was not entitled to the benefits 
of said order for the reason that he did not take advantage of the 
same at the close of the war or -within a reasonable time thereafter, 
and his inabihty to do so was caused by his own misconduct. C. 
7098, Oct. 7, 1899. 

IX D. A soldier who enlisted during the Spanish War executed an 
instrument January 10, 1899, as follows: "I voluntarily waive the 
privilege of discharge granted under General Orders No. 40, Adjutant 
General's Office, series 1898, and agree to serve the full time (three 
years), for which I was enUsted, provided I am sent to the Philip- 
pines." The war closed April 11, 1899. June 13, 1899, he made 
application at San Francisco to be discharged ; lield that the proposal 
of this soldier to waive his right to elect at the close of the war to be 
discharged was of no efTect and that the position of the Government 
was that he should be discharged at the close of the war in case he 
desired it, and that of course meant within a reasonable time. Held 
also that as the war closed April 11, 1899, his application of June 13, 
1899, was not within a reasonable time, unless the soldier was so 
situated that he could not have acted sooner by using reasonable 
diligence. Further held that the question of whether or not he was 
so situated is to be determined by tliose in charge of the matter of 
discharging soldiers. C. 6731 , July 22, 1899. 

IX E. In the case of men enlisted or reenlisted in the Regular 
Army during the Spanish War, lield that their discharges will be 
granted if discharged at the close of the war upon their individual 
applications, but that they will not be discharged if under charges, 
awaiting result of trials, or serving sentences; that General Orders 40, 
Adjutant General's Ollice, 1898, was not intended and should not be 
construed to operate to reheve them from consequences of military 
offenses. C. 6787, Feh. 3, 1899. 

X A. The services of a soldier were desired in another department 
of the Government and his discharge from the Army was requested. 
Held that the discharge in such a case rests upon grounds of expe- 
diency and the question presented is, will the public interest be bene- 
fited by the discharge. Further held that it should affirmatively 
appear in the request just what the benefit to the Government will 
be. Further held that if the soldier simply seeks his discharge in the 
hope of securing employment in another branch of the Government 
and makes no showing of a desire by that other branch of the Govern- 
ment for his employment it would not appear to be a case for dis- 
charge. C. 15717, Jan. 6, 1911. 

X B. The act of May 11, 1908 (35 Stat. 109), is a beneficial one 
enacted, in a spirit of liberality, to encourage reenlistments, and 
the construction should be equally liberal, in order to accomplish 
that purpose. To carry out the purpose of Congress a liberal con- 
struction must be given to the words "for the convenience of the 



DISCHAEGE XI A 1. 445 

Government." Held that all soldiers honorably discharged by the 
Government on its own motion or for its own advantage alter having 
served over half their enlistment and before the ex})u-ation of their 
term of enlistment, are equally deser^dng. There would be no reason 
for distinguishing between those honorably discharged because their 
services were no longer needed, those discharged to be immediately 
reenlisted, and those discharged for disability. A discharge for any 
of these causes is "for the convenience of the Government." V. 
23547, Mar. 28, 1910; 28327, May 10,1911. 

XI A 1. On request for information as to whether or not the nota- 
tion as to character entered uj^on a soldier's discharge refers to liis 
character as a soldier or his character as a man, held that it refers to 
his character regarded from both points of view. C. 15359, Oct. 
10, 1903. 

XI A 2. Held that the provisions of (paragraph 147,) Ai'my Regu- 
lations, (1910), relating to the appointment of a board of officers 
to determine the facts relative to a soldier's character is directory- 
only and does not affect the vahdity of an executed discharge, with 
reference to wliich the directions of the regulations have not been 
observed. C. 5943, March, 1899; 12942, July 11, 1902. 

XI B 1. The regulations provide that when a company commander 
deems the service of an enlisted man not honest and faithful, he 
shall, if practicable, so notify the soldier at least 30 days prior to 
discharge and shall at the same time notify the commanding officer, 
who Avill in every such case convene a board of officers, three, if 
practicable, to determine whether the soldier's service has been 
honest and faithful. Held that this applies only to discharges at 
expiration of term of enlistment and has never been regarded as 
restricting the authority vested in the Secretary of War by the fourth 
article of war to annul an enlistment contract whenever that course 
is dictated by the public interest. C. 20754, Nov. 23, 1906; 23259, 
Apr. 9, 1909. 

XI B 1 a. Held that a discharge without honor should not be given 
to a soldier who is confined in the guardhouse at date of expiration 
of term of enlistment awaiting trial or result of trial or serving a sen- 
tence which does not involve dishonorable discharge, without the 
previous action of a board of officers.^ C. 28556, June 19, 1911. 

XI B 2. A company commander believed that a soldier's service 
had been ''not honest and faithful." A board was called and ex- 
pressed the opinion that the man's service had been ' 'honest and faith- 
ful." This finding was disapproved by tlie convening authority. A 
second board was convened and made a report. Held that there was 
no authority for convening the second board, and that the soldier was 
entitled to an honorable discharge, service "honest and faithful" 
with character at least "good," as he could not be discharged without 
honor on account of ser^ace "not honest and faitliful," without the 
consensus of opinion of the company commander and the board, and 
the convening authority. C. 19364, Mar. 19, 1906. 

XI B 3. A company commander entered on the discharge certifi- 
cate of a soldier that his service was "not honest and faithful." 
Held that the War Department would not be legally justified in 
directing this company commander to issue another certificate, stat- 
ing that the service was honest and faithful, but that, the Secretary of 

* See par. 156, A. R., 1910, for date of discharge in such a case. 



446 DISCHARGE XI B 4. 

War could, if in his opinion the facts justified it, enter upon the 
man's discharge his opinion of the soldier's service, and he may enter 
thereon or cause to he entered thereon the fact that the soldier's 
service was "honest and faithful." 0. 12942, July 11, 1902. 

XI B 4. A soldier applied for enlistment and stated that he had 
been dishonorably discharged the service. He was enlisted. Held 
that he is not guilty of fraudulent enlistment and appears to be 
entitled to a discharge with service ''honest and faithful." C. 6699, 
June 17, 1899. 

XI B 5. Where a soldier's service has been honest and faithful, 
lield, that discharge without honor was improper, C. 2230, Apr., 
1896. 

XI B 6. Held that the service of a soldier who absented himself 
from his command just before its departure for the Philippines, to 
avoid service in those islands, was ''not honest and faithful." C. 
12307, Mar. 26, 1902. 

XI B 7. Held that for a soldier to continue his association with a 
negro strumpet after he had been directed by his commanding officer 
to discontinue such association rendered his service "not honest and 
faithful." C. 17583, Feb. 27, 1905. Similarly held that the marriage 
of a soldier to a well-known prostitute and continued association with 
her renders his service "not honest and faithful." C. 29114, Oct. 16, 
1911. 

XI B 8. Held that a soldier who had been arrested, convicted, and 
confined by the civil authorities had not served "honestly and faith- 
fully." C. 23259, Apr. 6, 1909. 

XI C 1. Among other acts of a discretionary character, the officer 
preparing a discharge is required to determine whether the following 
remark on the face of the discharge shall be erased or allowed to 
stand, viz, "No objection to his reenlistmeiit is known to exist." 
Held that if the remark is erased the erasure constitutes an official 
statement on the part of the officer that some objection to the sol- 
dier's reenlistment exists. Such objection may be quite independent 
of the character given on the discharge {C. 24222, Dec. 18, 1908), and 
the erasure may be based upon several grounds. The soldier may be 
incorrigibly careless, or he may be unable to attain even moderate 
proficiency in small-arms firing, or in drill, or he tcikj be afraid of 
horses. He may have some physical affection not impairing his 
efficiency as an able-bodied soldier, or he may be possessed of incur- 
able defects of temper, rendering him an undesirable associate for 
other enlisted men, etc. Upon careful inquiry the company com- 
mander may reach the conclusion that the soldier is not a desirable 
candidate for reenlistment, and that his reentry into the military 
service would be contrary to the public interest. Held that when 
the company commander erases the remark quoted above he should 
note, under the head of "Remarks" on the back of the discharge 
certificate, the reasons upon which his conclusion to make the erasure 
were based — this to enable the grounds of such conclusion to be 
made the subject of official inquiry. C. 24004, Mar. 10, 1909. ^ 

XII A. It is well established that a soldier can not himself avoid his 
contract of enlistment on the ground of minority and abandon at 
pleasure the military service. His release on this ground can be! 
obtained only on application of a parent or guardian entitled to his 



DISCHARGE XII B 1. 447 

services, and without whose consent he enhsted.^ P. 58, 1^2, Feb., 
1893. The application of the parent, whether made to the Secretary 
of War or on habeas corpus to a United States court, must be made 
before the soldier attains his majority and ratifies his contract.^ R. 
65, UO, Mar., 1888; P. 53, 105, Apr., 1892; 54, 233, July, 1892; 
C. 2870, Jan. 14, 1897; 4167, May 23, 1898; 12296, Mar. 26, 1902; 
16192, Apr. 21, 1904. 

XII B 1. By the practice of the War Department, the age of an 
alleged minor is generally required to be shown by the affidavits of 
both parents, if living, or by the affidavit of the surviving parent or 
guardian, supported by the affidavits of at least two other respectable 
persons cognizant of the fact or by an officially authenticated record 
of a church or court. If practicable, the affidavits should be accom- 
panied by the certificate of a judge of a United States or State court 
acquainted with the parties and vouching for the truth of the repre- 
sentations made. R. 53, 53, Oct., 1886. 

XII B 2. Where an application was made for the discharge, on 
account of minority, of a soldier born in Bermuda, advised that, in 
addition to the affidavit of the parent, there be required, as evidence 
of age, a transcript of the official parish, or other public, register of 
births, signed by the proper custodian (and sealed if he has a seal) ; 
his signature to be certified to as genuine by the United States con- 
sul. A transcript from the parish record of baptism (as sent in this 
case), lield insufficient if a register of births exists. P. 43, 77, Sept., 
1890. 

XII C 1 . Advised that an application of a parent for the discharge 
of a minor soldier be denied where it appeared that the soldier had 
married, presumably with the parent's consent. By the laws of 
France, and of Louisiana and some other States, marriage is an 
emancipation. And if it does not wholly emancipate the minor, it 
removes him in a measure from the parent's control and gives him 
a right to his earnings.^ P. 53, 105, Apr., 1892. 

XII C 2. A parent or guardian not domiciled in the United States 
but in France, held not entitled to the discharge from the military 
service of a minor enlisted -without consent. By such foreign resi- 
dence the parent or guardian is viewed as having emancipated the 
child or ward." P. 62, 132, Oct., 1893. 

XII D 1. The practice of the department is understood to be as 
follows, viz: When an application is made by parents for the dis- 
charge of a son on the ground that he is a minor, they are informed 
that the soldier is punishable for the olTense of enlisting without 
their consent, and if aUowed to remain in the service without raising 
the question of minority the soldier may serve his term, and if he 
does so faithfully he will receive an honorable discharge at its expira- 
tion. If, however, they desire to press the matter, they are requested 
to submit evidence of minority, and are informed that on receipt of 
such evidence charges will be prepared and the soldier will be charged 
with the offense, and if convicted given a sentence not to exceed 

1 In re Davison, 21 Fed. Rep. ,-618; In re Zimmermaii, 30 id., 176; In re Cosenow, 
37 id., 668; In re Kaufman, 41 id., 876; In re Morrissey, 137 U. S., 157. 

- In re Dohrendorf, 40 Fed. Rep., 148; In re Spencer, id., 149.. See Circular, War 
Department, Mar. 28, 1904. 

^ See Taunton v. Plymouth, 15 Mass., 204. 

* So held by Attorney General Cushing, 6 Op., 607. 



448 DISCHARGE XII D 2. 

dishonorable discharge, forfeiture of pay and allowances, and con- 
finement at hard labor for six months, and that upon the ex]:)iration 
of the confinement adjudged, the soldier will be released, and if the 
sentence does not include dishonorable discharge he will be given a 
discharge without honor in order that his parents may have his serv- 
ices, and that if the soldier completes one year of his enlistment, he 
may procure his discharge by purchase, and if his service be faithful, 
receive an honorable discharge C. 16379, May 26, 1904; 17964, May 
18, 1905. 

XII D 2. Fraudulent enlistment of a minor is punishable under the 
sixty-second article of war. Held that if steps should be taken to 
punish a soldier for that or other offenses the interests of the public 
in the administration of justice would be paramount to the right of 
the parent and would require that the soldier should abide the con- 
sequences of his offense before the right to his discharge be passed 
upon even by the civil courts in habeas corpus proceedings. B. 
50, 680, Aug., 1886; P. 54, 233, July, 1892; 57, 135, Dec, 1892; 61, 
158, Aug., 1893; 62, 191, Nov., 1893; C. 2870, Jan., 1897; 4244, June, 
1898; 5329, Nov. 16, 1898; 8982, Sept. 19, 1900; 16060, liar. 22, 1904.' 

XIII A 1. A soldier is entitled to his discharge as of the date of 
the expiration of the stipulated period of service for which he has 
enlisted. He can not discharge liimself, but a proper military 
superior becomes charged with the duty of discharging him on the 
date when his contract expires. Held that such superior neglects or 
refuses to perform this duty at his ]:)eril. C. 12854, June 23, 1902; 
15133, Aug. 21, 1903; 17700, Mar. 25, 1905; 26240, Feh. 19, 1910. 

XIII A 2. The act of desertion does not operate as a discharge. The 
name of a deserter is dropped from the proper rolls and is not again 
taken up until his apprehension or surrender; but he is in no sense 
discharged from the Army. P. 63, 30, Dec, 1890. 

XIII B 1. Where a soldier is held in the service, after the expira- 
tion of his term, to make up lost time, in the operation of the forty- 
eighth article of war or of a duly approved court-martial sentence, 
Jield, that the discharge should be dated as of the date of actual sepa- 
ration from the service, and that fact shoidd be noted on the dis- 
charge. A similar rule applies in the case of a soldier held beyond 
the expiration of his term for the convenience of the Government. 
C. 18438, June 26, 1908. 

XIII C. An officer or soldier actually serving to a given date can 
not legally be mustered out or discharged as of a prior date.^ R. 29, 
598, Jan., 1870; P. 44, 450, Jan., 1891; 46, 101, 223, 243, Mar. and 
Apr., 1891; 51, 126, Dec, 1891; C. 6330, Apr. 28, 1899. 

XIII D 1. A discharge takes effect from the date upon which 
notice of such discharge is served upon the person to be discharged. 
R. 29, 598, Jan., 1870; C. 6342, May 22, 1899. This service may be 
either actual or constructive. C. 15403, Oct. 24, 1903. Actual notice 
involves a direct statement to the man that he is discharged the 
service; constructive notice has by the custom of our service — a 
custom accepted and indorsed by the comptroller — been construed 

1 In re Kaufman, 41 Fed. Rep., 876; In re Dohrendorf, et al., 40 id., 148, In re 
Cosenow, 37 id., 668; In re Dowd, 90 id., 718; In re Miller, 114 id., 838; U. S. v. 
Reaves, 126 id., 127; In re Lesi^ard, 134 id., 305; Ex parte Anderson, 16 Iowa, 595; 
McConologue's case, 107 Mass., 170; In re Carver, 142 Fed. Rep., 623. 

2 13 Op. Atty. Gen., 278. 



DISCHARGE XIII D 2. 449 

to be the lodging of notice, in the absence of the person to be dis- 
charged, at the place where properly and legally he should be; his 
absence for his own convenience or through his own fault, not serving 
to allow him to claim lack of notice. C. 1289, Apr. 24, 1895; 16010, 
July 27, 1905, A third class of cases, however, would appear to 
exist where the soldier to be discharged is in confinement. The 
discharge in this case is dated at some time prior to the release of the 
man from confinement, and the certificate of discharge is not delivered 
to him until he is released from confinement. Between the time of 
the release and time at which the certificate is delivered, it is held in 
escrow by some person in military authority. C. 13016, July 24, 
1902. While notice lodged at the place where the person to be dis- 
charged is, should legally be deemed a constructive notice, it is 
believed that the mere lodging of a notice of discharge with the prison 
officer or the commanding officer of the post where the person to be 
discharged is in confinement might be held at some future time to be 
insufficient notice to the prisoner of his discharge. Held that it 
would be safer if the person to be discharged is present, to give him 
actual notice of his discharge, although there is no requirement 
whatever that the certificate should be placed in his possession until 
his release. Further held that it is necessary to distinguish between 
the actual discharge and the certificate thereof, which is merely evi- 
dence of such discharge.^ C. 5632, Jan. 7, 1899; 11712, Dec. 18, 1901; 
27724, Feh. 13, 1911. 

XIII D 2. The discharge certificate — often called the discharge — is 
not really the discharge ; nor is the actual or constructive delivery of 
it to the soldier the only means of giving him notice that he has been 
discharged. Such delivery would be a proper and effective notice, 
but to inform him verbally or other%vise of his discharge would consti- 
tute equally effective notice. C. 1570, July 25, 1895; 1916, Dec. 28, 
1895; 5632, Jan. 7, 1899; 9556, Jan. 4, 1901; 16938, Sept. 23, 1904; 
17700, Mar. 25, 1905. 

XIII D 3. A soldier sick in the First Reserve Hospital at Manila, 
P. I., was notified by the surgeon in charge of his ward May 10, 1901, 
that he was discharged from the service. He was then transferred 
sick to the general hospital, San Francisco, Cal. He was discharged 
from that hospital September 15, 1901, and furnished a certificate of 
discharge dated May 10, 1901. He claimed that the date of discharge 
was September 15, 1901. Held that in view of the fact that notice 
was served on May 10, 1901, he was discharged May 10, 1901.^ C. 
11712, Dec. 18, 1901, and Aug. 19, 1902. But held, where a soldier 
at the expiration of his enlistment was too sick to receive notice of 
discharge, that he was not discharo;ed at expiration of the time, but 
was held in the service until notice could be served on him of his 
discharge. C. 26240, Feb. 10, 1910. 

» See par. 156, A. R., ed. 1910, as amended by G. 0. No. 60. W. D. S. 1911. 

"The discharge of a soldier can only take effect on the date and at the place where 
he receives notice, or is legally chargeable with notice, of his discharge" (II Comp. 
Dec, 95, Aug. 31, 1895), and M. M. S. decision of the Comptroller, dated Apr. 18, 1900 
(Circ. 233, P. M. G. O., 1900). Soldier on furlough (VI Comp. Dec, 9, July 7, 1899). 

^ An enlisted man belonging to an organization which was discharged Nov. 17, 1898, 
who was present with his organization Nov. 16, 1898, and knew that it would be dis- 
charged the following day, but who was absent on that day and in a hospital not under 
military control until Dec. 12, 1898, and did not receive his discharge until Dec 27, 
1898, must be regarded as legally chargeable with notice of hie discharge Nov. 17, 1898. 
(V Comp. Dec, 606, Mar. 23, 1899.) 

93673°— 17 29 



450 DISCHABGE XIII D 4 a. 

XIII D 4 a. As notice can not be served on an insane soldier, Jield, 
that such a soldier can not be discharged except by order of the Sec- 
retary of War under authority which permits him to discharge patients 
in the Government Hospital for the Insane. Held, further, that if the 
patient has lucid intervals a notice given during such an interval is 
sufficient to render the discharge legal. P. 61, 79, Aug., 1893; C. 
11712, Dec. 18, 1901; 15403, Oct. 2^, 1903; 20066, Jan. 18, 1906. 
Held, further, that if the insanity has existed since before enlistment 
the man should be discharged without honor and turned over to the 
proper civilian authorities.^ C. 19208, Oct. 7, 1909. Held, further, in a 
case where a soldier was discharged on certificate of disability on 
account of insanity existing since before enlistment that there is no 
obligation on the Government to send the patient to the Government 
Hospital for the Insane. C. 19208, July 30, 1907, and Oct. 31, 1910. 
Held, further, that in cases of insanity not incurred in line of duty the 
Government should return the insane soldier to the place of enlist- 
ment and there discharge him without transfer to the Government 
Hospital for the Insane.^ C. 19208, July 25, 1910. 

XIII D 4 a (1). Where the enhstment of a soldier, who was under- 
going treatment at the Government Hospital for the Insane, expired, 
and a discharge on surgeon's certificate of disability was issued, held, 
that such discharge was complete, irrespective of the degree of insan- 
ity, or of the notice of discharge being given to, or through, a com- 
mittee or guardian; advised, therefore, that service of notice of dis- 
charge be made through the superintendent of the hospital. C. 
20066, Jan. 18, 1906. 

XIII D 4 b. Soldiers of the PhiHppine Scouts are entitled, when 
insane, to be admitted into the Government Hospital for the Insane. 
Held, in view of the great cost involved in the transportation of insane 
persons from the Philippine Islands to the Government asylum in 
Washington and of the undesirability of removing from the Philip- 
pines natives who are members of the Army, that it would be advisable 
to contract for their care, maintenance, and treatment at any asylum 
in the PhiHppine Islands. C. 15496, Jan. 16, 1907. 

XIII D 5. A soldier was sentenced to death and the sentence was 
commuted to imprisonment for life. Held, that his discharge took 
effect on the date upon which actual or constructive notice of the 
sentence as commuted was served on him. Also, held, that the dis- 
charge involved was a dishonorable discharge. C. 12623, May 26, 1902. 

XIII D 6 a. Where a soldier is in confinement awaiting trial by 
the civil authorities at date of expiration of service he is entitled to 
be discharged by reason of expiration of term of service the same as if 
not under arrest by the civil authorities. Held that unless his service 
has been of a nature otherwise to warrant a discharge without honor 
he is entitled to an honorable discharge without regard to whether or 
not he shall be subsequently convicted or acquitted by the civil 
authorities. C. 17373, Jan. 14, 1905. 

XIII D 6 b. During the confinement of a soldier awaiting trial his 
term of enlistment expired and a discharge without honor was depos- 
ited with his prison officer in escrow to be delivered to the soldier 
upon the termination of the military proceedings against him. Held 

1 See, however, "In re Grimier, 137, U. S., 153," in which it was held by the Supreme 
Court that the enlistment of an insane person is void . 

2 This opinion was published in Cir. 74, War Department, Nov. 10, 1910. 



DISCHARGE XIII D 7. 451 

that he was not discharged on the date when the discharge was fur- 
nished the prison officer, but that he remained in the service subject 
to the jurisdiction of a court-martial, and that a plea in bar to the 
effect that he was a civilian should be overruled. U. 13016, July ^4, 
1902; 15133, Aug. 21, 1903; 17380, Jan. 16, 1905. 

XIII D 7. A dishonorable discharge can not be executed until the 
order promulgating such sentence has been received at the place 
where the same is to be executed. The discharge, if to take effect 
forthwith, should be dated as of the day on which the order is re- 
ceived; and the soldier is entitled to be paid to include the date of 
his discharge, if any pay be due him. If confinement has also been 
awarded, the certificate of discharge is in practice committed to the 
custody of the post commander or other proper official to be held by 
him until the confinement has been executed and then delivered to 
the party entitled to it. P. J^l, 86, May, 1890; C. 1767, Oct., 1895. 
Nor can an official publication in orders of a sentence of dishonorable 
discharge have the effect of discharging a soldier; there must still be 
notice, actual or constructive, of the fact of discharge. C. 404, Oct., 
1894; 3063, Apr., 1897; 16010, July 7, 1904. 

XIII D 8. An enlisted man who had deserted during the progress 
of his trial was sentenced to be dishonorably discharged. The sen- 
tence was approved and a discharge was executed March 12, 1901, 
by the commanding officer of the post where his company was serv- 
ing. Held that the soldier was separated from the service by dishon- 
orable discharge March 12, 1901, and thereafter was a general pris- 
oner subject to arrest and confinement under his sentence. Held 
further that as there is no provision of regulations which provides as 
to where a dishonorable discharge certificate not actually delivered 
due to the escape of the party discharged, shall be deposited, the cer- 
tificate should he placed on file in the War Department. C. 10427, 
Mdy 11, 1901. 

XIII D 9 a. The President or the Secretary of War acting for the 
President has the right to fix a day in futuro when the discharge of an 
officer shall become operative, and the date should be chosen with 
due regard to the time when notice of the discliarge can be served. 
When an officer serving at an isolated station is ordered to be dis- 
charged on the date upon which the order is issued from the War 
Department in the city of Washington the order will become effective 
when the officer receives notice of his discharge.^ C. 16823, Sept. 
13, 1904. 

XIII D 9 b. The Senate declined to confirm the nomination of an 
officer whose name had been proposed for appointment to an office in 
the Army. The President withdrew the name and appomted another 
man to the position. Held that the first officer was discharged on the 
date when the President signed the commission of the second officer. 
a 17480, Feh. 2, 1905. 

1 See Gould v. U. S., 19 Ct. Cls.,593. "Officers discharged to take effect from a 
particular anterior date, who do not receive notice of their discharge until some time 
afterwards, and who in the meantime continue on duty, are entitled to pay to the 
date when notice of discharge was received. " Dig. Dec, Second Comptroller, vol. 1 
(1869), sec. 1144. 

"An officer on detached service at the time his regiment was discharged, and actu- 
ally performing duty as an officer of said regiment until he received notice of his dis- 
charge, is entitled to pay up to the date of such notice. " Id., sec. 1146. 



452 DISCHAEGE XIII E 1* 

XIII E 1 . A Volunteer soldier was tried during the Spanish War 
by a court composed of Volunteer and Regular officers and sentenced 
to dishonorable discharge and imprisonment for a period of ten years. 
After his regiment had been mustered out and whUe serving said 
sentence it was decided that his sentence was null and void, inasmuch 
as Regular officers sat on his court. Held that he was discharged 
from the service on the date when his regiment was mustered out and 
that his discharge was without honor. C. 12103, Aug. 7, 1902; 1571, 
Feb. 25, 1895; I4643, Jan. 6, I904. 

XIII E 2. The commanding general, Department of the Pacific and 
Eighth Army Corps, directed that certain men be dropped from the 
rolls of the Thirty-sixth United States Infantry. Held that this was 
an order of "the commanding officer of a department" discharging 
them from the service within the meaning of the fourth article of war. 
Further held, that their contracts of enlistment were terminated the 
day they received notice of such order, although they may never have 
been furnished with the usual discharge certificate. C. 8266, June 
2, 1900. 

XIII E 3. In 1902 an American who had been presumably a prisoner 
in the hands of Philippine insurgents was turned over to the American 
authorities at Bantangas, Luzon, P. I. The provost marshal recom- 
mended that the man's identity be established and the man released 
or returned to duty, as he claimed to belong to Company M, Twentieth 
Infantry. The commanding general. Division 01 the Philippines, 
directed the commanding general. Department of North Philippines, 
to release the man, i. e., to set him at liberty, and added that "the 
man has been dropped from his company rolls. If he believes he has 
any just claim against the Government he can present it with 
evidence." The man was set at liberty. Upon later evidence the 
commanding general, Philippines Division, caused this man to be 
apprehended and tried by court-martial for desertion in time of war. 
Tlie man pleaded in bar of trial that he had been discharged and set 
forth the above facts. The court overruled his plea, found him guilty, 
and sentenced him to be hanged. Held that the plea in bar offered by 
the accused was a good and valid plea and should have been accepted 
by the court, and that the man was discharged when he was set at 
liberty. C. 16938, Sept. 23, 1904, dfid Mar. 18, 1910; 17294, Dec. 
24,1904; 17034, May 12, 1905. 

XIII F. During the Civil and Spanish Wars there was a rule, 
published in general orders, to the effect that when Volunteer troops 
are mustered out of service the entire regiment or other organization 
wUlbe considered as having been mustered out at the same time and 
place, except prisoners of war. Held that this did not include 
deserters at large who had been dropped from the rolls. C. IOI4I, 
Apr. 3, 1901. 

XIV A 1 . The formal certificate of discharge, signed as required by the 
fourth article of war and furnished the soldier is legal evidence of 
the fact of discharge and of the circumstances, when stated, under 
which it was given. ^ It is furnished the soldier primarily for his use, 
but not being a record, the statements therein are not conclusive upon 
the Government when contradicted by record or better evidence. 

» Hanson v. S. Scituate, 115 Mass., 336; Bd. of Comrs. v. Mertz, 27 Ind., 103; U. S. 
V. Wright, 5 Philad., 296. 



DISCHARGE XIV A 2. 453 

P. 51, 126, Dec, 1891. Thus an entry on a certificate of discharge of 
the date of enlistment is a copy from the original record of that fact. 
If this entry is erroneous it may be corrected by the War Department 
by substituting a new and correct certificate of discharge or, as is done 
m practice, by indorsing on the old certificate a statement that the 
records of the department show, etc. P. 49, 87, Sept., 1891; C. 1 1883, 
Jan. 9, 1902; 11741, Jan. 11, 1902; 14820, Aug. 26, 1903. The dis- 
charge is complete without the final statements. R. 50, 4^4^ July, 
1886. 

XIV A 2. While a Volunteer soldier was absent in desertion, the 
Volunteer Armies were disbanded under an act of Congress. Held 
that the soldier upon the disbandment ceased, by operation of law, 
to be a deserter and became a civilian; that his military record, so far 
as the War Department was concerned, ended with the proper entry 
of the fact of his desertion; that in the absence of statutory authority 
the War Department was without power to legally discharge the 
soldier after the Volunteer Armies by disbandment ceased to exist. 
P. 50, 192-203, Nov., 1891; C. 42267, Aug., 1890; 60214, June, 1893; 
494, Oct., I894. If the party was in fact discharged, actually or 
constructively, before or at the time the Volunteer forces were dis- 
banded, as shown by the records, a certificate to that effect could 
at any time be given by the War Department. P. 36, 334, Nov., 
1889; C. 12146, Mar. 1, 1902; I2464, July 8, 1902; 13118, Sept. 10, 
1902; 16976, Oct. 6, 1904; 17807, Apr. 11, 1905. 

XIV A 3. Held that a commanding officer who is not in the same 
regiment as the soldier will sign the discharge certificate of a soldier 
under his command onl}^ when no field officer of the enUsted man's 
regiment is present. C. 13594, Nov. 6, 1902. 

XIV A 4. The act of February 24, 1897 (29 Stat., 593), was to pro- 
vide for the relief of certain officers and enlisted men of the volunteer 
forces during the Civil War. Held that those who were beneficiaries 
under that act were entitled to have discharge certificates furnished 
them. C. 3021, Mar. 19, 1897. 

XIV A 5. A discharge certificate in favor of a volunteer soldier who 
had served during the Civil War was issued by The Adjutant General's 
Department. The certificate was subsequent!}^ found to be defective 
in that it had not been signed. Held that the certificate could later 
be completed bv signature. C. 10889, July 26, 1901. 

XIV B 1. Under the authority of the act of April 14, 1890 (26 
Stat. 55), entitled ''An act for the relief of soldiers and sailors who 
enlisted or served under assumed names * * * during the Civil 
War" held that a son of a slave, originall}^ enlisted under the name of 
his former master and discharged as such in 1864, might legally have 
a discharge certificate issued to him in the name of his father, who 
had been given liis freedom since the enlistment of Ms son. P. 60, 
354, July, 1893. 

XIV B 2. Where a certificate of honorable discharge has had its 
value impaired by a later erroneous entry thereon, lield that there 
was no legal objection to an issue by the War Department of a new 
certificate containing no reference to the erroneous entry. P. 34, 
222, Aug., 1889; C. 1793, Oct., 1895; 11883, Jan. 8, 1902. 

XIV B 3. A soldier was discharged in Alaska and given a discharge 
certificate, not on parchment but on paper. He applied for a parch- 
ment certificate of discharge. Held that he is not now in the service 



454 DISCHAEGE XIV B 4. 

and can not, therefore, be given a discharge therefrom, but that no 
legal objection is seen to furnishing him a certified copy of the 
manuscript discharge made up on the parchment form and retaining 
the original in The Adjutant General's Office. C. 6982, Sept. 8, 1899; 
6983, Sept. 12, 1899. 

XIV B 4. Section 224, R. S., does not authorize the Secretary of 
War to issue a duplicate certificate of discharge to replace one lost, 
to an officer or soldier who served in the Mexican War, or to one who 
served in any war other than "the late war against the rebellion." 
P. 65, 390, July, 1894. 

XIV C 1. Where a duplicate certificate, having been furnished, has 
been lost or destroyed, held that as the statute does not prohibit the 
issuing of a second certificate, the Secretary of War may, under the 
power which, as representative of the President is vested in him, issue 
such certificate if in his judgment it is proper to do so. C. 3101, 
Apr., 1897; 12029, Feh. 15, 1902. 

XIV D 1. A soldier who had served during the Spanish War 
requested a certificate of service; held that under the Army Regula- 
tions he was entitled to such a certificate which should show the date 
of enlistment and discharge from the Army and character given on 
discharge, upon proof of the loss of the original certificate or of its 
destruction without the fault of the party entitled to it. Also held 
that under the same regulations and independently of section 224, 
R. S., a "certificate of service," substantially in accordance with the 
form referred to above, should be issued to a soldier of any war or 
to his heirs, upon satisfactory proof of the loss or destruction of the 
original certificate of discharge. This form bears nothing on its face 
to show that it was issued under any particular law or that it is 
anything more than an official statement of the soldier's service.^ 
C. 7114, Sept. 30, 1899; 13037, July 29, 1902. 

XIV D 2. A soldier's dishonorable discharge was rendered illegible 
by his being "upset from a boat." Held that the certificate was 
destroyed within the meaning of the act of July 1, 1902 (32 Stat. 
629), and that he was entitled to a certificate of service. C. 14131, 
Feb. 12, 1903. 

XIV D 3. A soldier of the Thirty-second Infantry, United States 
Volunteers, absented himself without leave at Nagasaki, Japan, when 
the transport carrying the regiment to the United States for muster 
out stopped at that port. He had not reported for duty when the 
regiment was mustered out, and was carried on the roll as absent 
without leave. Held that he was legally chargeable with notice of 
his muster out as of the date on which his regiment was mustered out, 
and upon that date he legally became a civilian, and not being in the 
military service can not be given a discharge therefrom as requested. 
Held further that there is no legal objection to giving him a certificate 
of service, setting forth the facts tliat he passed out of the military 
service on date of the muster out of his company, being at that date 
absent without leave. C. 12464, July 8, 1902. 

XIV D 4. Section 5 of the act of August 3, 1861 (12 Stat. 288), 
authorized the enlistment of "medical cadets." One of them lost 
his discharge certificate. Held, that as he was an enhsted man a cer- 

i See act of July 1, 1902 (32 Stat. 629). 



DISCHARGE XIV D 5. 455 

tificate of service under the act of July 1, 1902 (32 Stat. 629), could 
be furnished to him. C. 21108, Feb. 23, 1907. 

XIV D 5. A soldier was granted a discharge without honor under a 
mistake as to fact. Held that the corrected statement of facts could 
be entered by the War Department on the discharge certificate and 
the certificate returned to the man, or, preferably, the corrected dis- 
charge-without-honor certificate could be retained by the War 
Department and a certificate of service, showing the correct state- 
ment of facts, furnished to the man. C. 11741, Jan. 30, 1902. 

XV A. An executed honorable discharge issued by competent 
authority can not be revoked ^ unless obtained by fraud on the part 
of the soldier. C. 26092, Jan. 18, 1910. Mere mistake on the part of 
the officers executing it will not justify revocation. C. 2700, Oct. 2^, 
1896; 23570, July 10, 1908. Tlie same is equally true of a discharge 
without honor when once duly executed. C. 2099, Mar. 4, 1896; 
2423, July 6, 1896; 9028, Se'pt., 1900; 10922, July 24, 1901; 
11741, Jan. 30, 1902; 12342, Apr. 4, 1902; 14425, Apr. 3, 1903; 
15144, Oct. 28, 1903; 15581, Mar. 28, 1908; 15727, Jan. 6, 1904; 
20908, June 19, 1909. 

XV A 1 . A soldier who had less than two years and six months to 
serve and whose organization was under orders for service in the 
Philippines informed his company commander that he would reenlist 
for service in the PhiHppuies if they would take liim as a married man 
and permit him to take his wife to the Philippines with him, as he 
intended to take the examination for appointment as post quarter- 
master sergeant. An honorable discharge certificate and fuial state- 
ments were made out and handed to Mm. He then proceeded to the 
recruiting officer and requested to be reenUsted with the privileges of 
a married man, and was told that his case would remain in abeyance 
until the recruiting officer could communicate with authorities in 
Washington. Upon visiting the post shortly after, the sergeant 
major informed him that the delivery to him of his discharge and fuial 
statements was a mistake and directed him to turn them in. The 
man did this and was given a certificate by his company commander 
showing that he had been honorably discharged. Upon visiting the 
recruiting officer he was informed that authority had been secured 
for his reenhstment, but the privileges of a married man had not 
been allowed in his case. This man considered himself a free man 
and secured employment as a civilian without any attempt to flee 
from justice or escape military control. He was arrested as a deserter. 
HeM, that no fraud had been practiced in the securing of his discharge 
and that he was actually discharged the service when the discharge 
certificate was handed him by the sergeant major. C. 15581, Mar. 
28, 1908; 7020, Sept. 13, 1899; IOO4I, Mar. 23, 1901. 

XV A 2. An ofhcer secured a commission m the volunteer service 
by fraud and was honorably discharged when his regiment was mus- 
tered out. Later, a War Department order was issued which pur- 
ported to dishonorably discharge him as of the date of his muster out 
on account of certam irregularities. Held that the order which 
purported to change the honorable discharge to a dishonorable one 
was inoperative. C. 9121, Oct. 13, 1900, and Aug. 17, 1906. 

'■ Petition of A. O. Brooks for writ of habeas corpus (I Phil. Repts. 55, Nov. 5, 1901). 



456 DISCHAKGE XV B. 

XV B. Where a soldier has been legally sentenced to be dishon- 
orably discharged and such discharge issued by competent authority 
has been duly executed, it is beyond the power of the Executive, what- 
ever the merits of the case, to substitute an honorable in lieu of the 
dishonorable discharge. The latter having gone into effect can not 
be undone,^ moreover, the soldier having been thereby wholly 
detached from the military service and made a civilian, can not again 
be discharged from the service until he has been again enlisted into 
it. R. 37, 390, Mar., 1876, and 610, May, 1876; 38, 236, Aug., 
1876, and 605, May, 1877; 1^1, 465, Nov., 1878; C. 2174, ^pr. 8, 
1896; 2776, Nov. 30, 1896; 3800, Jan. 20, 1898; 5234, Jan. 9, 1899; 
7448, Jan. 18, 1900; 11450, Oct. 23, 1901; 12342, Apr. 4, 1902; 
14899, July 29, 1903; 15144, Oct. 16, 1903; 16180, Apr. 13, 1904; 
16194, June 2, 1904; 16659, July 29, 1904; 22060, Sept. 13, 1907; 
17667, Mar. 19, 1908; 23574, July 13, 1908; 20908, June 19, 1909. 

XV C. A man was legally discharged without honor by competent 
authority under a mistake as to fact. Held that the discharge was 
not revocable. C. 1876, Nov. 25, 1895; 2099, Mar. 4, 1896; 11741, 
Jan. 30, 1902; 14425, Apr. 4, 1903; 20908, June 19, 1909; 14163, 
Mar. 12, 1910; see also DiscMrge, XV A. 

XV C 1. A soldier was serving sentence at expiration of term of 
enlistment and a discharge without honor was delivered to his com- 
mandmg officer. Before-the expiration of his sentence the sentence 
was discovered to be illegal and was declared void, and the man 
ordered released. Held that the discharge had been legally executed 
and could not be revoked, and that it should be delivered to the man 
upon his release from confinement.' C. 13210, Aug. 29, 1902; 13209, 
Aug. 30, 1902. 

XV D 1. An order purporting to revoke a legally executed hon- 
orable discharge, not obtained by fraud, and substituting therefor a 
dishonorable one, held wholly unauthorized and illegal. R. 6, 478, 
Nov., 1864; 11, 197, Bee, 1864; 20, 584, ^pr., 1866; 25, 541, May, 
1868; a 2700, Oct. 24, 1896; 1200 and 1399, Apr. and May, 1895; 2543, 
Aug., 1896. Similarly TieU, respecting an order which purports to 
substitute an honorable discharge for a legally executed discharge 
without honor, or a legally executed dishonorable discharge. C. 605, 
Nov., 1894; 1382, May, ^1895; 2099, Mar., 1896; 2174, Apr., 1896; 
6378, July, 1899; 11741, Bee. 11, 1901; 11851, Jan. 4, 1902; 14882, 
June 27, 1903; 15581, Bee. 4, 1903; 15727, Jan. 6, 1904; 25004, May 
21, 1909. 

XV D 1 a. A soldier was duly discharged pursuant to an order 
from the War Department. The order was issued under a misappre- 
hension in regard to his actual status at the time — a mistake of fact — 
which if discovered would have deferred or prevented the issumg of 
the order. Held that the mistake of fact did not invalidate the dis- 
charge; that havmg been duly executed, it could not be revoked. 
P. 61, 421, Sept., 1893; C. 1876, Nov., 1895; 1791, Jan. 2, 1896; 
11741, Bee. 11, 1901, and Jan. 20, 1902. 

XV D 1 b. Where a soldier, before the expiration of his term, 
received under the fourth article of war a discharge hi due form, 
though charges were then pending against him, the authority order- 
ing the discharge not havmg been made awai-e of such charges, Jield 

M Op. Atty. Gen., 274. 



DISCHARGE XV D 1 C. 457 

that the discharge was executed and could not be revoked with a view 
to bringing the soldier to trial; that he had, by the discharge, duly- 
become a civilian and was no more than any other civilian under the " 
control of the military autliorities. B. 23, 483, May, 1867; P. 50, 
295, Nov., 1891; C. 1791, Jan. 2, 1896; 12342, Apr. 4, 1902. 

XV Die. Through an error of fact a discliarge without honor 
was given to a soldier; held that a notation showing this may be made 
on the records and also on the certificate of discharge if the soldier so 
desires.i C. 6358, May 15, 1899; 11741, Jan. 11, 1902; 14820, June 
18, 1903. 

XVI A 1. The muster-out of organizations of the volunteer forces 
raised during the period of the Civil War was prescribed by General 
Orders 108, Adjutant General's Office, April 28, 1863, which provided 
that discharge certificates should be prepared for enlisted men 
who were absent for proper and sufficient reasons, and that these 
should be held in escrow by the company or organization com- 
mander and delivered when the conditions of the escrow had been 
fulfilled. A discharge was made out and so held in escrow in the 
case of a soldier who was absent in desertion. He later, through 
fraud, secured possession of this discharge certificate. ^ Held that as 
this honorable discharge was obtained by fraud and could have been 
obtained in no other way, it did not operate to separate the claimant 
from the militarv service on the date and for the cause set forth 
in the discharge Certificate. C. 20529, Oct. 24, 1906; 1791, Jan. 2, 
1896. 

XVI A 2. The honorable discharge of a soldier was authorized in 
advance of the expiration of his term on condition that he should 
reenlist immediately for service in the Philippine Islands. He was 
accordingly honorably discharged. He failed to reenlist and thus 
repudiated the agreement with the United States, in the operation 
of which his honorable discharge had been secured. Held that 
his discharge had been obtained by fraud and that it was not binding 
upon the Government and might be repudiated and set aside by 
the Secretary of War. The discharge was actually ordered set 
aside and a new discharge without honor of a different and later 
date was issued in its place. C. 15581, Dec. 8, 1903, and Mar. 28, 
1908; 20529, Oct. 24, 1906. 

XVI A 3. Where a soldier, by making an alteration in his "descrip- 
tive list" so as to cause it to appear that his term of enlistment, 
which was in fact five years, was three years only, induced the 
regimental commander to give him an honorable discharge at the 
end of three years' service; held, upon the fraud being presently 
discovered, that the discharge might legallv be revoked and the 
soldier be brought to trial by court martial under the ninety-ninth 
(now sixty-second) article of war. R. 21, 390, May, 1866. 

XVI A 4. A soldier secured his discharge by a fraudulent repre- 
sentation that he had secured a good position in civil life. HeU, 
that his arrest, trial, and punishment, and the cancellation of the 

• 13 Op. Atty. Gen., 201. 

^ 16 Op. Atty. Gen. 349. A soldier who was not honorably discharged at end of 
Civil War, but who was absent, obtained an honorable discharge later from the War 
Department by a fraudulent representation of his status. Held that the conditions 
did not exist under which he could have been honorably discharged and that the 
revocation of the discharge was proper and the concellation of the certificate right. 



458 DISCHAEGE XVI B 1. 

discharge certificate were legal.^ C. 28879, Aug. 23, 1911. See also, 
P. 49, 454, Oct. 16, 1891. 

' XVI B 1. A soldier who became insane wlide in the service was 
in hospital on account of the insanity at the expiration of his term 
of service. A discharge certificate was thereupon issued to him 
(in contravention of the Army Regulations covering such cases) 
and his discharge was noted on the records. Held, that, being 
insane, his notice of discharge was ineffective to deprive him of 
the right to be sent to the Government Hospital for the Insane 
or to preclude the Government from recalling and canceling the 
discharge. Advised that the same be recalled and canceled, and 
the man committed to the Government Hosspital in accordance 
with the regulations. P. 61, 79, Aug., 1893; C. 11712, Dec. 18, 
1901; 15403, Oct. 24, 1903; 19050, Jdn. 13, 1906; 20066, July 17, 
1906. 

XVI B 2. A soldier was discharged without honor and it was 
afterwards discovered that at the date of his discharge he was 
suffering from incipient dementia. Held, that he was thus irre- 
sponsible for certain derelictions of duty. He was then honorably 
discharged and the records in the office of The Adjutant General 
were amended accordingly. C. 5897, Mar. 23, 1899. 

XVI C 1. A soldier was ordered discharged without honor, but was 
actually issued a dishonorable discharge; held, that a new discharge 
certificate may be issued or the present one may be changed to show 
he was discharged "without honor." C. 7102, Oct. 5, 1899. 

XVl C 2. The reviewing authority mitigated a sentence which 
included dishonorable discharge and confinement as follows: ''Sen- 
tence is reduced to 18 months." Through a belief that only the 
confinement portion of the sentence had been thus mitigated a dis- 
honorable discharge was issued. Held, that the command issued by 
the reviewing authority could be interpreted only as a mitigation of 
the complete sentence to confinement to 18 months, even though the 
explanation was made that the word "sentence" was through a 
clerical error written instead of confinement, and further, lield, that if 
a dishonorable discharge had been issued it should be recalled and 
canceled as void and inoperative under the terms of the mitigated 
sentence. C. 11211, Sept. 11, 1901. 

XVI D. A legally executed discharge issued by competent authority 
can not be revoked, but, held, that an executed discharge issued by 
incompetent authority is not binding upon the Government. C. 
20529, Oct. 24, 1906; 26092, Jan. 18, 1910. 

XVI D 1. Where a United States commissioner in Indiana issued 
to a United States marshal a warrant for the arrest of a deserter 
from the Army, and, upon such deserter being brought before him, 
adjudicated the question of his right to discharge from the military 
service, and ordered him discharged therefrom, held, that the entire 
proceeding was coram non judice and a gross assumption and exceed- 
mg of authority, and advised that the facts of the case be communi- 
cated to the Attorney General for his action, and that the deserter 
be forthwith rearrested and brought to trial by court-martial. P. 58, 
287, Mar., 1893. 

^ See 28 Op. Atty. Gen. 170, in which it was held that the Secretary of the Navy 
can revoke the discharge of an apprentice seaman procured by fraud. 



DISCHARGE XVI E. 459 

XVI E. Held, that an order which directs a discharge may be 
revoked or suspended at any time before the discharge has actually 
taken effect. R. 29, 508, _ Jan., 1870. 

XVI F. An order was issued from the Headquarters of the Army, 
directing a discharge without honor of a soldier on account of ms 
being in the hands of the civil authorities, serving sentence of impris- 
onment. The discharge had not been delivered actually or con- 
structively when it developed that the soldier, after trial by jury, was 
acquitted and released. Held, that the order directing his discharge 
should be revoked and the discharge certificate canceled, as the cause 
of the issuance of the discharge did not further exist and the dis- 
charge had not been effected. C. 10567, May 31, 1901. 

XVI G. Several soldiers were tried in the Department of the Dakota 
by a court-martial convened by a lieutenant colonel and sentenced 
to be dishonorably discharged. The sentence was approved by the 
lieutenant colonel commanding the department and tlie execution of 
such sentences was entered upon. Held, that as a lieutenant colonel 
in command of a department had no authority to convene a general 
court-martial that the sentences of such court were null and void 
and that the dishonorable discharges which had been executed pur- 
suant to such sentences should be revoked. Held, further, that the 
men who were serving such illegal sentences should, after the revoca- 
tion of the dishonorable discharges w^liich had been issued to them, 
be brought to trial before a legally constituted court, discharged 
without honor, or restored to duty without trial. ^ 0. 16710, Feb. 6, 
27, and 29, 1908; P. 1^2, 438, Sept. 2, 1890. 

XVI G 1 . In the case of a soldier who was dishonorably discharged 
pursuant to an illegal sentence, held, that as the sentence was null 
and void the dishonorable discharge was of no effect and the soldier 
could be returned to duty without trial. ^ P. 1^1, 39, May 20, 1900; 
C. 14643, Dec. 22, 1903; 16710, Feb. 29, 1908. 

XVI G 2. In the case of a soldier who, pursuant to an illegal 
sentence, was dishonorably discharged, held that the dishonorable 
discharge was of no effect and that its revocation would place him in 
exactly the same status that he was in preceding his being brought to 
trial. Held further that he could be brought to trial before a legally 
constituted tribunal on the original charges. C. 16710, Feb. 29, 1908. 

XVI G 3. A soldier pursuant to an illegal sentence was dishonorably 
discharged. Held that the dishonorable discharge was of no effect 
and that his status was the same as it was preceding his trial and that 
he could be discharged without honor, as of the date when the dis- 
charge without honor was delivered, even though he had been con- 

' See '■'In re Bird," in which it was held that the dishonorable discharge of a soldier 
pursuant to an illegal sentence rendered by a court which had no jurisdiction did 
not operate to change in any particular the status of the soldier, and was stated that 
it was axiomatic that "a void judgment or sentence works no change in the status 
of the person or thing against or concerning which it is given or pronounced." (3 Fed. 
Cases, 427.) 

'^ See General Oourt-Martial Orders No. 47, Headquarters Department of the Colum- 
bia, 1885, in which a military convict who was serving a two-years sentence was 
released froni confinement and attached to one of the companies of the Fourteenth 
Infantry, as it was discovered that there was a fatal defect in the proceedings of the 
court which sentenced him. See also General Court-Martial Orders No. 23, Depart- 
ment of Dakota, 1888, which set aside void sentences and restored to duty soldiers 
who pursuant to those void sentences had been dishonorably discharged and sentenced 
to confinement. 



460 DISCHARGE XVI G 4. 

fined in a military prison as a general prisoner.^ C. 16710, Feb. 27 
and 29, and Aug. 14, 1908; I4643, Jan. 6,1904. 

XVI G 4. A colonel who was temporarily in command of the Army 
of Cuban Pacification issued orders purporting to convene general 
courts-martial. The officers designated met and tried cases and 
sentenced soldiers to dishonorable discharge. Held that as a colonel 
in command of an army has no authority to convene a court-martial 
all the sentences were null and void and the dishonorable discharges 
based upon them were of no effect and that the status of the men 
concerned was that of men awaiting trial under the original charges. 
C. 16710, July 23, 24, 26, and 29, 1908, and Aug. 12 and I4, 1908. 

XVI G 5. A soldier during the Civil War was tried by a court 
composed of enlisted men and sentenced to be drummed out of the 
service. Entry was made on the records that he was discharged. 
Held that he had not been tried and that the so-called sentence was 
illegal, and the discharge, for that reason, inoperative. C. 2213, 
May 8, 1896. 

XVI H. A lieutenant of the Forty-third New York Infantry was 
dropped in 1861 by order on account of absence without leave. Legis- 
lative relief was afforded in his case by means of a private act, which 

Erovided that he should hereafter be held and considered to have been 
onorably discharged from the military service of the United States. 
Held that this act authorized a mutilation of the records and an entry 
on the old records, but that it did not authorize the issuance of an 
honorable discharge certificate. C. 17797, Apr. 12, 1905. 

XVII A. An officer was lawfully separated from the military- 
service by the legally approved sentence of a general court-martial. 
Held that it was beyond the power of the Executive to grant an 
honorable discharge, to revoke the dismissal which had been fully 
executed, or to issue an instrument in the nature of a discharge 
certificate purporting to separate the applicant from the volunteer 
service in any other way than that determined by the approved 
sentence of the court-martial in his case.^ C. 23153, May 4, 1908. 

XVII B. Section 5 of the act of April 23, 1908 (35 Stat. 67), provides 
that if the unfavorable finding of an examining board in the case of a 
medical officer is concurred in by the board of review, the officer 
reported disqualified for promotion shall, if a first lieutenant or 
captain, be honorably discharged from the service with one year's 
pay. Held that in such a case the discharge should be issued on the 
date when the officer's failure to qualify was reported to the Secretary 
of War, or so soon thereafter as, by an exercise of reasonable diligence, 
a discharge certificate could be procured and forwarded to tlie officer 
whose connection with the military service it operates to sever. 
C. 23135, Dec. 11, 1909. 

- XVIII A. Certain cadets were dismissed by order of the Secretary 
of War, which order was approved by the rresident. Held that as 
the dismissal of these cadets had been completely executed the 
President could not reconsider or revoke the order for their discharge 
or pardon them so as to restore them to their former status at the 
Military Academy, and that an act of Congress would be necessary. 

» See pars. 3, 4, 5, 6, and 7, Special Orders No. 52, War Department, Mar. 3, 1908. 
^ See 4 Op. Atty. Gen. 274, 306; also 1 Winthrop's Military Law and Precedents, 
619; and Blake v. U. S., 103 U. S., 227. 



DISCHARGE XIX. 461 

C. S94.71, Aug. 24, and Oct. 16, 1909. Similarly Md in the case of a 
cadet who was discharged for disability. C. 25946, Dec. 11, 1909. 

XIX. The Secretary of War may by an act of Congress ^ be author- 
ized and required to amend the rolls and records so as to show that a 
soldier was honorably discharged as of the date on which he was in 
fact dishonorably discharged, and give him a discharge certificate to 
that effect. C. '2047, Feb., 1896; 13645, Nov. 17, 1903. 

XX A. The President nominated a man as an officer in the Vol- 
unteer force during the Civil War. The Senate declined to confirm 
the appointment. The President then revoked the appointment. 
Held that the revocation by the President amounted to a discharge 
from the service. C. 9096, Dec. 11, 1900.^ 

XX B. Held that it is within the authority of the President to ter- 
minate the engagement of any officer or enlisted man of the Philippine 
Scouts by an honorable discharge whenever his services are no longer 
needed or when the public interest demands his separation from the 
military service. Further lield that it is not within the power of the 
Executive to summarily dismiss an officer of the Philippine Scouts 
by way of punishment for an offense, as such separation from the 
service is expressly forbidden by section 1229, R. S., and the ninety- 
ninth article of war.. C. 22129, Dec. 10, 1907. 

XX C. In the case of six soldiers who had been imprisoned under 
sentence of a civil court, who were plainly undesirable as soldiers, 
and concerning whom it was clear that they should be summarily 
discharged as being an incubus to the service, held that the depart- 
ment commander had authority to order the discharge of these 
men without honor, as it was not one of the cases coming within that 
part of the regulations which requires the action of the Secretary of 
War. C. 23259, Jan. 14 and 19, 1909. 

XX D 1 . The fourth article of war vests in the commanding officer 
of a department specific authority to discharge enlisted men. Held 
that there can be no doubt as to the authority of the command- 
ing geaeral of the department as an incident of his power to discharge, 
to determine from the report of tlie medical officer the nature of the 
discharge to be issued in each case in cases of disability. If the dis- 
ability was contracted in the line of duty an honorable discharge 
issues. If, however, the disability is shown to be due to the vicious 
habits of the soldier, an honorable discharge can not issue, and the 
separation of the soldier from the military service will be accomplished 
in the operation of a discharge without honor. C. 24131, Nov. 24, 
1908.'' 

XX D 2. The commanding officer, district of North Alaska, 
requested authorit}^ to discharge an enlisted man on surgeon's cer- 
tificate of disability ; held that under the fourth article of war he could 
not be given such authority. C. 6565, June 13, 1899. 

^The act of March 3, 1909 (35 Stat., 836), authorized the Secretary of War to appoint 
a court of inquiry to pass on the eligibility of all men discharged without honor from 
three companies of the Twenty-fifth Infantry. The title described the act as one "To 
correct the records and authorize the reenlistment," etc. The body of the act made 
no provision for amending the rolls but provided that if the court should report favor- 
ably in any case, such man should be deemed to have reenlisted immediately after 
his discharge without honor. A court of inquiry was appointed by par. 7, S. O. No. 
79, series War Dept. 1909. 

2 X Comp. Dec. 375, Oct. 23, 1903. General Order 174, War Department, Washing- 
ton, Aug. 12, 1909, directs that hereafter orders for the discharge of enlisted men on 
account of disability will not be issued except l^y the War Department. 



462 DISCHARGE XX E. 

. _ . ^ 

XX E. A Signal Corps soldier was under orders for service in the 
Philippines Division, and preceding his departure for those islands 
signed a written agreement that he would reenlist for further service 
in the islands. When the time approached for his discharge he 
declined to reenlist. The commanding general, Philippines Division, 
recommended that this soldier be discharged without honor and that 
authority be given him, the commanding general, to grant discharges 
without honor in similar cases. Held that the soldier had merely 
changed his mind, and that as an honest change of intention does not 
taint a soldier's character, his change of intention could not be used 
as a basis for granting him a discharge without honor, and recom- 
mended that power should not be given to the commanding general, 
Philippines Division, to grant discharges without honor in similar 
cases. C. 15581, Aug. 5, 1909. 

XX F. Held that a court-martial can not impose either an honor- 
able discharge or a discharge without honor, nor can a dishonorable 
discharge be imposed except by sentence of court-martial. C. 11741, 
Jan. 11, 1902. 

XXI A. An officer of Volunteers was examined as to his qualifica- 
tions by a board of officers under "an act to provide for the examina- 
tion of certain officers of the Army," approved June 25, 1864, and was 
reported mentally disqualified for the duties of his office and was 
thereupon dismissed by Executive order in accordance with the pro- 
visions of the act; held that the dismissal was in effect an honorable 
discharge from the service.* P. 46, 333, Apr., 1891; 65, 31, May, 
1894. 

XXI B. Held that although an officer's discharge may not have 
been for disability, the disability may have existed and may be 
proved. C. 10396, May 14, 1901. 

XXII A. An honorable discharge releases from the particular con- 
tract and term of enlistment to wliich it relates, and does not there- 
fore relieve the soldier from the consequences of a desertion committed 
during a prior enlistment. P. 49, 442, Oct., 1891; 53, 179, Apf., 1892. 
Similarly held with respect to a discharge without honor. C. 2115, 
Mar., 1896. These discharges release the soldier from amenability 
for all offenses charged against him within the particular term to 
which they relate, including that of desertion, except as provided in 
the sixtieth article of war. C. 2041, May, 1896. 

XXII B. A dishonorable discharge does not relate to any par- 
ticular contract or term of enlistment; it is a discharge fi'om the 
military service as a punishment — a complete expulsion from the 
Army and covers all unexpired enlistments. A soldier thus dishonor- 
ably discharged can not be made amenable for a desertion or other 
military offense committed under a prior enlistment except as pro- 
vided in the sixtieth article of war. Nor would a subsequent enlist- 
ment after such dishonorable discharge operate to revive the amen- 
abihty of the soldier for such offenses. P. 53, 46, 179, Apr., 1892; 
55, 165, Aug., 1892; 59, 55, 86, Apr., 1893; C. 3585, Nov., 1897; 
7614, Jan. 25, 1900; 13579, Nov. 3, 1902; 24658, Mar. 13, 1909. _ 

XXV A. A post commissary sergeant was charged with serious 
irregularities in connection with the sale to unauthorized persons of 
of commissary stores. Recommendation was made that he be sum- 
marily discharged. Held that a noncommissioned officer of a number 

1 See Circ. 4, A. G. O., 1891. 



DISCHARGE DISCHARGED SOLDIER. 463 

of years' standing is entitled to consideration and that no man should 
be summarily discharged for an actual concrete offense without having 
been given ample opportunity to present a defense in justification of 
his act. C. 20086, Aug. 3, 1911. 

XXVI A. An Austrian subject* enlisted in the Army and afterwards 
deserted; subsequently, while held as a deserter, he asked to be dis- 
charged to enable him to return to Austria, there to meet his obliga- 
tion to render military service; held that as he left his native country 
and enlisted in the United States Army, he came under the jurisdic- 
tion of the United States, and that the right of the United States to 
hold him to his enlistment and to punish him for offenses committed 
thereunder, was clearly paramount to the claim of his home Govern- 
ment; and that, if the applicant thought otherwise, the proper course 
would be for him to have the case considered through diplomatic 
channels. C. 12968, July 17, 1902, Nov. 12, 1908, and Oct. 1, 1910. 

CROSS REFERENCES. 

As pardon See Pardon XVI D. 

Effect on status See Discipline VIII I 1 ; la. 

From, militia See Militia XVI J. 

Muster out is See Volunterr Army IV B 3; 5. 

Of civilian employee See Civilian Employees XI B to C. 

Of drafted men See Enlistment II C. 

Of medical officer See Army I G 3 d (2) (6). 

Of medical Reserve Corps officers See Army I G 3 d (3) (c) [3]. 

Of seamen See Civilian Employees XV A. 

Payment See Pay and Allowances I A 1 a. 

Revocation of. See Discipline XV E 9. 

While in confinement See Discipline XII B 3 g (2). 

DISCHARGE BY CIVIL COURT. 

See Discharge VII A; B. 
DISCHARGE BY PURCHASE. 

See Discharge VI A; D 1 to 7. 

See Articles of War, XXI C 2 d. 

Deposit for See Pay and Allowances I C 7 a to b. 

Deposit of money paid See Appropriations XXXV. 

DISCHARGE BY WAY OF FAVOR. 

See Discharge V C; VI to VII. 
Waiver of travel allowance See Pay and Allowances III C 2 c (3). 

DISCHARGED OFFICER OR SOLDIER. 

Arrest of See Command V A 6 b (1) (6). 

Not amenable under 48 Articles of War See Articles op War XLVIII B. 

Trial of See Articles of War LX E 1 ; 4. 

DISCHARGED SOLDIER. 

Award of certificate of merit to See Insignia of Merit II G. 

Eligibility for gunner's badge See Insignia of Merit III C. 

Liability to taxation See Tax I to II. 



464 DISCHARGE FOR CONVENIENCE DISCIPLINE: SYNOPSIS. 



DISCHARGE FOR CONVENIENCE OF GOVERNMENT. 

See Enlistment I B 2 b (1), c. 
DISCHARGE WITHOUT HONOR. 

See Discharge I A; III to IV; XI B 1 a. 

Continuous service can not antedate See Pay and Allowances I C 5 b (1). 

Department commander See Discharge XX C. 

Effect on status See Discharge XXII A. 

See Discipline VIII lie. 

See Retirement II A 1 b. 

Evidential vahte to Pay Department See Desertion XIV A 4. 

For desertion See Desertion XVI A. 

For fraudulent enlistment See Enlistment I A9f (l);g (1); (2); (4);h 

See Pay and Allowances III C 2 a. 

Illegal dishonorable discharge See Discharge XVI G; G 3. 

Of cadet See Office IV E 2 g (1) (c) . 

Of insane soldier See Desertion VII A 2; XIV B. 

See Discharge XIII D 4 a. 

Of men guilty of crimes See Articles of War LXII C 6. 

Of officer See Office IV D 6; E 2 e. 

Of soldier in confinement See Discharge XIII D 6 b. 

Not to be given in addition to punishment. .See Enlistment I A 9 i. 

Not revocable See Discharge XV C; CI; Die. 

Reasons for See Discharge II B 1. 

Reenlistment after See Enlistment I D 3 c (17) ; (18) (c). 

Retired soldier. See Retirement II F 3. 

Sentence null See Discharge XIII E 1. 

Soldier takes what clothing? See Allowances II A 3 a (4) (b). 

Travel allowance forfeited See Pay and Allowances III C 2 c (1) ; (2). 

DISCIPLINE.! 
I. ARREST. 

A. Force That Can be Used. 

1 . As much as is necessary Page 480 

2. Private house can not be entered. 

a. Public parts of public house. 
Status. 

1. Does not involve irons. 

2. Inconsistent with duty. 

3. OflScer in arrest can prefer charges Page 481 

Bail Can Not be Accepted. 
Officers. 

1. Placed in arrest by commanding officer only. 

2. Arrest not a demandable right. 

3. Manner of placing in arrest. 

4. Limits of arrest. 
Enlisted Men. 

1. Arrest of by noncommissioned officers. 

2. Can not be punished summarily and tried for same offense. 

3. Paroled by civil courts can be arrested Page 482 



B. 



E. 



> The Divisions of DISCIPLINE are: Page. 

I. Arrest 464 

II. Charges 465 

III. Convening authority 466 

IV. Judge advocate 467 

V. Accused 468 

VI. Member 468 

VII. Authority of court 469 

VIII. Jurisdiction of court 469 

IX. Procedure of court , 470 



Page. 

X. Witnesses 471 

XI. Evidence 472 

XII. Action by court 473 

XIII. Record of court 475 

XIV. Reviewing authority 475 

XV. Revision by J. A. General 477 

XVI. Inferior courts 478 

XVII. Punishment 479 

XVIH. Board of investigation 480 



discipline: synopsis. 465 

n. CHARGES. 

A. Military Offenses. 

1. Defined. 

a. Same offense repeated. 

b. One act — two or more offenses. 

c. Offenses that are not military offenses. 

(1) General incapacity. 

(2) Worthlessness. 

d. Petitioning Congress over head of Secretary of War. 

B. May be Initiated by Anybody. 

C. May be Preferred by Officers Only Page 48S 

D. Preparation of. 

1. Consists of two parts. 

a. Each charge may have several specifications. 

b. Each specification must be appropriate to its charge. 

c. Reference to a writing should quote the writing. 

2. Essentials. 

3. Definite terms must be used Page 484 

4. Put under proper article of war. 

5. Charge may recite number of article violated. 

6. Varying punishment depending on willfulness or negligence. 

7. Joint charges. 

8. Description of person. 

a. Pronoun in first person not to be used Page 485 

b. Initials may be used. 

9. Time and place to be alleged. 

a. "On or about" and "at or near." 

b. "On route between and " and "between 

and day of . " Page 486 

10. Time. 

a. Reasonably exact allegation. 

b. "From — to — . " 

c. "Between — and — "in offenses of omission. 

d. "During a period of days' ' indefinite. 

11. Do not. 

a. Plead evidence. 

b. Plead secondary evidence Page 487 

c. Plead minor included offense. 

d. Plead alternatively. 

12. Signing of charges. 

a. By whom? 

(1) When prepared by Judge Advocate General. 

13. Twentieth article of war. 

a. Particular acts or words should be set forth. 

14. Twenty-first article of war. 

a. May add "thereby causing his death" Page 488 

15. Fifty-eighth article of war. 

a. Not necessary to allege time of war. 

16. Sixtieth article of war. 

a. Not necessary to allege intent to defraud. 

b. Or in embezzlement that money or property was furnished 

or intended for military service of United States. 

17. Sixty-first article of war. 

a. Abusive language to commanding oflScer. 
93673°— 17 30 



466 DISCIPLINE : SYNOPSIS. 

n. CHARGES— Continued. 

D. Preparation of — Continued. 

18. Sixty-second article of war. 

a. Drunkenness not on duty. 

b. Manner of writing charge. 

c. Instances of incorrect allegation Page 489 

d. Violation of Army regulations. 

19. All crimes should be charged. 

20. Disobedience by general prisoner should be charged under sixty- 

second article of war. 

E. List op Witnesses. 

F. Preferring Charges. 

1. At once after commission of offense. 

2. Accumulation of charges Page 490 

G. Forwarding by Commanding Officer. 

1 . Not required to state character of accused. 
H. Amendment op Charges. 

1. Before trial. , 

2. By plea in abatement. 
( I. Withdrawal of Charges. 

K. Disposition op Original Charges. 

1 . After arraignment Page 491 

m. CONVENING AUTHORITY FOR COURTS-MARTIAL. 

A. Regulations as to Constitution op Court are Mandatory. 

B. Commander in Chief. 

1. Secretary's order is order of President. 

2. Trial under 1230, Revised Statutes. 

a. Application by dismissed officer must be made in reasonable 

time Page 492 

b. Application can not be considered after muster out of Volun- 

teer Army. 

C. Appointment of Court. 

1. Members. 

a. Officers excepted from control of convening authority. 

b. Officers on existing courts. 

c. Volunteers may be detailed to try regulars. 

d. Officers biased, etc., should not be detailed. 

e. Convening authority sole judge of availability with regard 

to rank Page 49S 

i. Medical Reserve Corps oflficers and dental surgeons available. 

2. Judge advocate. 

a. Commissioned officers. 

b. Civilians. 

c. Officers who should not be detailed. 

(1) The accuser or an officer personally interested. 

(2) An officer with charges against accused. 

(3) Simply to authenticate record Page 494 

3. Can not be delegated as a routine duty to staff officer. 

D. Authority over Court. 

E. Action on Charges. 

1. Two sets should be consolidated. 



DISCIPLINE : SYNOPSIS. 467 

m. CONVENING AUTHORITY FOR COURTS-MARTIAL— Continued. 

E. Action on Charges — Continued. 

2. Enlisted men. 

a. Convening authority can not impose punishment when 

restoring deserter to duty. 

b. Convening authority's action is not affected by maximum 

punishment order. 

3. Convening authority carefully considers charges Page 495 

a. May try soldiers for fraudulent enlistment and desertion 

therefrom. 

b. Desertion should be tried by general court-martial, but join- 

ing the enemy by military commission. 

4. May decline to surrender accused to civil authorities. 

5. Referring cases to court. 

a. Officer under conservator may be tried. 

b. Question of moral obliquity should be referred to general 

court-martial rather than to examining board. 

6. May direct fiolle prosequi. 

7. May afford accused opportunity to explain charges. 

F. Communication With Court and Judge Advocate Page 496 

G. Convening Order. 

1. Must show that convening officer had authority. 
IV. JUDGE ADVOCATE. 

A. Separate for Each Court. 

B. Authority of Judge Advocate. 

1. To alter charges. 

2. Employ reporter „ Page 497 

a. Or use enlisted man as such. 

3. To subpoena witnesses. 

a. To testify in court. 

(1) To testify by deposition. 

b. Can not hire service of subpoenas. 

c. Can certify expense in locating witnesses Page 498 

d. May employ expert witness. 

(1) If question of insanity is raised. 

4. To issue process. 

a. Detaining civilian witnesses in guardhouse. 

5. No authority over accused. 

C. Duty of Judge Advocate. 

1. As adviser to court. 

2. To the accused. 

a. As adviser. 

(1) As to plea .' Page 499 

3. To prepare record. 

a. Judge advocate as witness. 

b. Authenticates record. 

(1) If two have been detailed, last one authenticates 

record . 

(2) Should bind record. 

(3) Should brief record. 

(4) May print record Page 500 

4. To administer oaths. 

a. To reporter. 

b. Of office and for purposes of military administration. (See 

Office.) 



468 discipline: synopsis. 

IV. JUDGE ADVOCATE— Continued. 

D. Executes Orders of Court. 

E. Presumption That he Does his Duty. 

F. Absent from Session. 

G. Not Unavailable for Other Duty. 

H. No Officer Can Act as Trial Judge Advocate Except by Detail. 
I. Counsel to Assist Judge Advocate. 

1. Used only in important and complicated cases. 

2. Can not be employed by judge advocate Page 501 

K. Advised by Accuser or Prosecuting Witness. 

L. Closing Address to Court. 
M. Transmission op Pvecord. 

N. Not Subject to Challenge Page 502 

O. May Challenge for Cause. 

V. ACCUSED. 

A. Trial is Not a Right. 

B. Can Not be Compelled to Criminate Himself. 

1. But figure cards may be introduced as evidence of identification. 

C. Rights of Accused are Independent of his Rank. 

D. Defense. 

1. To prevent embarrassment a minimum of restraint placed on 

accused. 

2. Insufficient defense. 

a. Assault and battery by officer on soldier Page 503 

b. In case of disrespectful letter to superior. 

c. Duplication of pay accounts. 

3. Should not be required while on trial to meet new charges before 

same court. 

4. Failure to note variance at arraignment is waiver. 

5. Drunkenness caused by medicine prescribed by surgeon. 

6. Refusal to obey illegal order Page 504 

E. What is Waived by Pleading the General Issue ? 

F. Demand for "Election" op Charges Not Allowable. 

G. Counsel. 

1. Not a right Page 505 

2. Interview with accused and witnesses. 

3. Officers not suitable for duty as counsel. 

4. To employ all honorable means to acquit. 

5. Civil counsel not furnished by United States Page 506 

6. Accused must bear expense of. 
H. Statement op Accused. 

1. Permitted. 

2. Admissions bind him. 

3. Freedom of expression allowed. 

4. If written, to be signed. 

5. Not to be published by accused. 
I. Acquittal. 

1. Leaves accused in same status as before trial. 

VI. MEMBER Page 507 

A. Adding New Members. 

B. Sworn as a Witness. 

C. Arrest Preceding and Following Membership Does Not Render 

Member Ineligible to Sit. 

D. Absence of Member from Session. 



discipline: synopsis. 469 

VI. MEMBER— Continued. 

E. May be Arrested. 

F. Separation op Member From the Service. 

G. President of the Court. 

1. By virtue of seniority of rank Page 508 

2. Duties. 

3. Does not exercise command. 
Vn. AUTHORITY OF COURT-MARTIAL. 

A. Source Statutory. 

B. Over Charges, 

1. If not signed. 

2. To change charges Page 509 

C. Over Persons. 

1. Members. 

a. Can not seat them in different order than expressed in con- 
vening order. 

2. Judge Advocate. 

3. Accused. 

D. Can Not Assign Counsel. 

E. May Ask for Witnesses , Page 510 

1. Or witness with papers. 

F. In Case op False Swearing Before it. 
Vm. JURISDICTION OF COURT-MARTIAL. 

A. Criminal, not Civil. 

1. Can not rescind contract or adjudge damages. 

2. Can not order payment of debt. 

B. Not Territorial Page 511 

C. No Presumption in Favor op Jurisdiction. 

D. Attaches When? 

1. Placed in arrest or charges served. 

2. Arrested on day of discharge before delivery of certificate. 

3. Deserter confined under charges Page 512 

4. Jurisdiction by civil courts over military offenders is abandoned. 

E. Double Jeopardy. {See One hundred and second article of war.) 

F. Under General Article. 

1. Loose and indefinite pleading. 

2. Indefinite pleading under specific article. 

G. Over Person. 

1. Accused. 

a. Need not be in arrest. 

b. Offense committed while in arrest. 

c. Officer under suspension , Page 513 

(1) By sentence or commutation thereof. 

2. Civilians. 

a. Trial of by military court is violation of sixth amendment 

to Constitution. 

(1) Statute granting jurisdiction in time of peace in 

such cases is unconstitutional. 

(2) Between enrollment and muster-in of volunteers 

status is that of civilians. 

(3) A court has no jurisdiction simply because a civilian 

commits an offense against the Commander in 
Chief or any high official of the Army. 

b. Exception — general prisoners are subject to trial by court- 

martial. 



470 DISCIPLINE : SYNOPSIS. 

Vin. JURISDICTION OF COURT-MARTIAL— Continued. 
H. Not Lost. 

1. By change in status of accuser Page 514 

2. By escape of accused. 

3. Or set aside by process of State court. 
I. Ends. 

1. With separation from service. 

a. Offense not discovered until after separation Page 515 

b. Not revived by reentry into service. 

c. Rule in case of deserters. 

d. Even if kept under control as a general prisoner. 

2. Jurisdiction over cadet continues after promotion to commis- 

sioned office . 
IX. PROCEDURE OF COURTS-MARTIAL. 

A. How Determined Page 516 

B. Time of Session. 

1. Sunday. 

C. Doors Opened or Closed to Public. 

D. Between Adjournments Court May Try Other Cases. 

E. Arraignment. 

1. One act — several charges. 

2. Changing of plea. 

3. Evidence not to be received by plea. 

4. Accused declines to plead — plea "not guilty' ' entered. 

5. Plea is guilty. 

a. May call for evidence Page 517 

(1) Statement made with plea. 

(2) Statement inconsistent with plea Page 518 

(3) Even after accused makes final statement. 

b. May not receive evidence after reaching a finding. 

F. Special Pleas. 

1. Plea in bar. 

a. Pardon. 

(1) Constructive pardon Page 519 

(2) Reduction of noncommissioned officer to ranks and 

confinement can not be pleaded in bar on trial for 
offense. 

2. Pleas in abatement. 

a. Objection to form of charges. 

3. Motions. 

a. To strike out. 

G. Suspension op Trial. 

1 . When accused develops insanity Page 520 

H. Closed Sessions. 

1 . Judge-advocate excluded . • 

a. Not after court has arrived at a finding and sentence. 

2. May be held before court is sworn. 
I. Final Statement op Accused. 

1. In cases of desertion. 

2. In cases of larceny. 
K. Vote op Court. 

1. Majority vote required Page 521 

2. Polling of court not authorized. 
8. No minority report to be made. 



DISCIPLINE : SYNOPSIS. 471 

IX. PROCEDURE OF COURTS-MARTIAL— Continued. 
L. Adjournment. 

1. Requires majority vote. 

2. Sine die. 

M. Authentication Page 522 

N. Revision. 

1. Court may be reconvened by convening authority. 

2. Action recommended in reconvening order directory only. 

3. Five members must be present. 

4. Accused need not be present Page 523 

5. No testimony to be received. 

6. Previous record not to be altered or mutilated — corrections to be 

made in new proceedings. 

a. This revision is different from daily revision. 

b. Indorsement by judge advocate does not amend record. 

7. When court can not be reconvened no revision possible. 

0. Dissolution op Court. 
X. WITNESSES. 

A. Competent. 

1. Deserter Page 524 

2. Members and judge advocate of court. 

3. Reviewing authority. 

4. Persons not named in list. 

5. Wife of prosecuting witness. 

B. Incompetent. 

1. Wife of accused. 

a. Trial of husband for nonsupport. 

2. Insane person. 

3. Child — as to offenses against it Page 525 

C. Competency. 

1. Rules determining, same as in criminal courts. 

D. Accused Entitled to Summoning of Material Witnesses. 

1. Can not demand certain important witnesses. 

E. By Deposition. {See Ninety-first article of war .) 

F. Service of Summons. 

1. By military or civil person. 

2. Service can not be hired. 

3. Witnesses in foreign territory Page 526 

G. Discharge op. 

1. Only by notification. 
H. Criminating Answers. 

1. Privilege respecting, is personal. 

a. If witness ignorant of right, should be instructed. 

2. Medical officer may testify to facts learned in regular examination 

of accused. 

3. Accused. {See Discipline V B to C.) 

1. Fees. 

1. Qualification for Page 527 

2. Claim for loss of time, etc. 

3. Of experts. 

4. When giving e\'idence by deposition. {See Ninety-first article of 

war.) 

5. Rate fixed by Secretar>' of War. 

6. To foreign civil witnesses. 



472 DISCIPLINE ; SYNOPSIS. 

X. WITNESSES— Continued. 
I. Fees — Continued. 

7. Lost voucher, how replaced. 

8. To policemen Page 528 

9. To postmaster. 
K. Writ op Attachment. 

1. When summons not obeyed. 

2. Can not be issued to cause witness to appear before commissioner. 

3. Execution of attachment. 
L. Exemption. 

1. From arrest. 
XI. EVIDENCE. 
A. Rules. 

1. Same as in criminal courts of United States. 

2. Presumption that officer performs duty Page 529 

3. Not affected by rank. 

4. Burden of proof. 

a. In desertion case. 

5. Privileged communication. 

6. Credibility. 

a. Of public enemy. 

7. Confession. 

a. Must be free and voluntary Page 530 

b. Can not be used until corpus delicti is proven. 

8. Drunkenness may be observed and testified to. 

a. In connection with intent. 

9. Perjury — two witnesses required Page 531 

a. Testimony as to credibility of witness is material. 

10. Testimony not to be received which results from refreshing of mem- 

ory by witness who leaves court room for that purpose. 

11. Prosecution can not attack character of accused until accused intro- 

duces eAadence of character. 
a. Evidence of insanity of accused Page 532 

12. In case of homicide character of victim can not be assailed. 

13. Evidence recorded in previous similar hearings must be given 

de novo; one hundred and twenty-first article of war excepted. 

14. Evidence by accused. 

a. Of an extenuating nature. 

b. Accused takes the stand. 

(1) Cross-examination of Page 533 

15. Weight of evidence does not depend on number of witnesses. 

16. Credibility of witnesses, appearance, etc. 

17. Documentary. 

a. Official records. 

(1) High class of evidence of facts recorded pursuant to spe- 

cial object for which kept. 

(2) Under military control. 

(a) In War Department. 

[1] Copies admitted. 

[a] Orders and other papers. 

[6] Recruiting papers Page 534 

[c] ( 'ourt-martial records. 

[d] Title papers. 

[e] Muster rolls. 

[A] Showing absence without 
leave Page 535 



DISCIPLINE : SYNOPSIS. 473 

XI. EVIDENCE— Continued. 

A. Rules — Continued. 

17. Documentary — Continued. 

(«) In War Department — Continued. 

[2] Compiled statement not admitted. 
(b) Outside of War Department. 

[1] War Department orders. 

[2] Morning report books. 

[3] Copies of pay accounts. 

[4] Descriptive lists. 

b. Private writings. 

(1) Under military control. 

(a) Proof of handwriting necessary Page 536 

(2) Not under military control. 

(a) Telegrams. 

c. Affidavits — not admitted. 

18. Repeated false statements evidence of embezzlement. 
Xn. ACTION BY COURT. 

A Finding. 

1. No evidence — finding conforms to plea. 

2. Finding on charge must be supported by finding on specification. 

a. One charge, one specification — not guilty of specification 
necessarily acquits Page 537 

3. Separate finding on each charge and specification. 

4. Plea is guilty to specification and not guilty to charge — finding on 

charge is a question of law. 

5. Exceptions and substitutions authorized. 

a. Name, rank, time, date, etc. 

b. Word which expresses gravamen of offense can not be 

excepted if finding is guilty. 

6. Lesser included offense. 

a. Absence without leave instead of desertion. 

b. "To the prejudice " instead of "unbecoming " . . Page 538 

c. The reverse not true. 

7. Court can not substitute finding of an offense other than the 

one charged Page 539 

8. Twenty-first article of war.. 

a. It must be proved that — 

(1) Accused "knowingly" assaulted superior. 

(2) Superior was "in execution of office." 

(3) Order was "lawful." 

(a) Justification for disobedience of order. 

9. Thirty-eighth article of war. 

a. Any intoxication is violation of article Page 540 

10. Thirty-ninth article of war. 

a. Accused pre^dously "overtasked" not a defense. 

11. Sixty-first article of war. 

a. Duplicated pay voucher paid Page 541 

12. Sixty-second article of war. 

a. Specification of homicide omits "with malice aforethought." 

b. Defense to charge of embezzlement. 

B. Sentence. 

1. Evidence of previous convictions. 

a. May be admitted to determine measure of punishment. 
(1) Of convictions during current enlistment. 
(a) That were approved. 



474 discipline: synopsis, 

Xn. ACTION BY COURT— Continued. 
B. Sentence — Continued. 

1. Evidence of previous convictions — Continued. 

a. May be admitted to determine measure of punishment — Con, 

(1) Of convictions during current enlistment — Contd. 
(6) Over objection of accused that he had not 
raised question of character. 

(c) Evidence of, is original record or authenti- 

cated copy Page 542 

(d) Date of approval fixes date of conviction. 

b. Should not be received after acquittal. 

2. In discretionary case court may impose any punishment sanc- 

tioned by customs of service. 

a. Maximum punishment order is to determine measure and 

kind of punishment. 

b. Convening authority can not order court to adopt particular 

form of sentence. 

c. Punishment should be measured by gravity of military 

offense. 

d. Under thirty-eighth article of war Page 54S 

e. Under fifty-eighth article of war. 

3. Adoption of sentence. 

a. Each member proposes a sentence. 

b. Each member votes for a punishment. 

c. Necessity of correct statement of name. 

d. Reprimand. 

e. Forfeiture. 

(1) Should clearly state the penalty to be forfeiture — it 

can not be implied Page 544 

(2) Should clearly fix exact amount to be forfeited. 

(3) Can not sentence man to forfeit private money. 

(4) Court can not impose fine to reimburse Government 

for calling the accused's witnesses. 

f. Loss of rank. 

(1) Reduction to the ranks. 

(a) Of noncommissioned officer does not carry 
transfer Page 545 

(2) Loss of files may be awarded. 

(3) Suspension from rank. 

(a) Includes suspension from command. 
(6) Takes effect on notice. 

{c) May carry confinement to station for same 
period of time. 

g. Confinement. 

(1) Sentence should say "at such place as the reviewing 

authority may designate " Page 546 

(2) May adjudge confinement extending beyond term of 

service with or without dishonorable discharge. 

(3) May be given until a fine is paid. 

(4) Court may consider period of time accused has been 

in confinement. 
h. Unusual punishments. 
L Dismissal - Page 647 



discipline: synopsis. 475 

Xn. ACTION BY COURT— Continued. 

B. Sentence — Continued. 

4. Improper sentences. 

a. To perform duty. 

b. To remain in ser\'ice. 

c. To deposit pay with paymaster. 

C. Remarks by Court. 

D. Animadversion by Court Upon Witness. 

E. Recommendation to Clemency. 

1. Not part of record Page 548 

a. There may be more than one recommendation. 

b. Members should state specific ground for recommendation. 

c. Can not be withdrawn. 

F. Explanation op Sentence by Court — Improper. 
Xin. RECORD OF COURTS-MARTIAL. 

A. Is Full Recital of Details of Trial Page 549 

1. Even irregular proceedings. 

B. Convening Order. 

1. Authority for each member's acting as such should be cited. 

C. Organization. 

1. Assembly Page 550 

2. Challenge. 

a. Right to, must be extended by court Page 551 

3. Court and judge advocate sworn. 

D. Arraignment. 

E. Record of All Meetings Page 552 

F. Recess. 

G. Sets Proceedings Out in Proper Order. 
H. Of Revision. 

I. Op Close of Session. 
K. Op Testimony. 

L. Separate Record for Each Case Page 55S 

M. Death Sentence — Record Must State Two-Thirds Vote. 
N. Separate Record op Finding on Each Charge and Specification. 
O. Record Need Not Show Judge Advocate Called Attention of 
Accused to Privilege op Testifying in His Own Behalf. 
XIV. REVIEWING AUTHORITY. 

A. Who is? 

1. Original when convening authority Page 554 

2. Division commander, after merging of separate brigade in division. 

3. When accused leaves jurisdiction of convening authority before 

action on case. 

B. Can Not be Restrained by Superior Authority. 

C. Can Not Delegate Functions. 

1. Jurisdiction same as that of court Page 555 

D. Can Not Act on Sentence op General Prisoner if Offense Com- 

mitted Before Discharge Was Given. 

E. Sentence Inchoate Until Acted on by Reviewing Authority. 

1. Can not correct record. 

2. Can not add to punishment. 

a. By designating penitentiarj' as ' " military prison " . Page 556 

3. Not necessary to approve finding. 

4. Reasons for returning record to court. 

A. Record materially erroneous. 



476 DISCIPLINE : SYNOPSIS. 

XIV. REVIEWING AUTHORITY— Continued. 

E. Sentence Inchoate Until Acted on, etc.^ — Continued. 

4. Reasons for returning record to court — Continued. 

b. Finding "to the prejudice" on charge of "conduct unbe- 
coming "... Page 557 

0. Error in time alleged. 

5. Presumption that proceedings are regular. 

6. Record lost — sentence not effective. 

7. Irregularities that are not fatal. 

a. Misnaming or misdescription of rank of accused — when 

waived Page 558 

(1) Name misspelled but idem sonans. 

b. No time pleaded. 

c. Use of old serial number of charge. 

d. Hostility of judge advocate to accused. 

e. Accused shackled during trial. 

f . Member acted as interpreter. 

g. Revealing finding of sentence to clerk. 

h. Omission of record of adjournment Page 559 

i. Preparation of record by judge advocate when reporter was 
appointed. 

8. Considerations affecting action. 

a. When testimony is conflicting. 

(1) Court's conclusions have weight. 

(2) A sentence to be valid must rest upon an approved 

guilty finding. 

9. Sentence. 

a. Grounds for disapproval. 

(1) Court denied request of accused for material witness. 

(2) Presence on revision of member who did not sit on 

hearing Page 560 

(3) Material variance in name between specification 

and sentence. 

(4) Accuser was prosecuting witness and interpreter on 

trial. 

(5) Member present at finding was absent during sub- 

stantial part of trial. 

(6) Member acted as judge advocate Page 561 

(7) Court refused to allow witness to correct testimony. 

(8) Limit of solitary confinement exceeded in sentence. 

(9) Sentence of confinement did not designate period. 

(10) Sentence requires reviewing officer to fix date of 

discharge. 

(11) Court excepted material allegation of false writing 

on charge of forgery Page 562 

(12) Finding violation of fortieth article of war as lesser 

included offense in forty-eighth article of war. 

(13) Under fifty-eightli article of war. 

(a) Peace intervenes before sentence. 

(6) Punishment less than required by local law. 

(14) Of part of sentence in addition to dismissal under 

thirty-eighth, sixty-first, and sixty-fifth articles of 
war. 

(15) Court improperly overrules challenge. 



discipline: synopsis. 477 

XIV. REVIEWING AUTHORITY— Continued. 

E. SiiNTENCE Inchoate Until Acted on, etc. — Continued, 

9. Sentence — Continued. 

a. Grounds for disa})proval — Continued. 

(16) Reasonable continuance not granted Page 563 

(17) Designation of penitentiary for military offense. 

b. Effect of disapproval. 

(1) Of conviction. 

(a) Has effect of acquittal Page 564 

(2) Of accquittal. 

c. Exceeds legal limit, legal portion approved. 

d. Mitigation. (See also Discipline XV F to G.) 

(1) Reasons for. 

(a) Protracted arrest. 

(6) Mutiny under provocation. 

e. Action changed before notice — not after Page 565 

t. Dismissal. 

(1) Irrevocable after execution. 
g. Penitentiary sentence — designation must be api^roved by 

Secretary of War. 

(1) Sentence ' 'in such place as the reviewing authority 
may direct." 
h. Place of confinement may be changed. 
i. Reprimand — reviewing authority judge of severity. 

k. Loss of files — how effected Page 566 

1. Action must be entered at end of record, 
m. Authentication must be personal, 
n. Acquittal. 

(1) Prisoner released before action. 

F. Promulgating Order. 

1. Should give date of action. 

2. Notice otherwise than by publication of order Page 567 

3. Should be sent to commanding officer if accused has passed out of 

the command. 

G. Reviewing Authority May Recommit a Prisoner Who Has Been 

Illegally Released. 
H. The President. 

1. May be original and final reviewing authority. 

a. Act must be personal, but need not be evidenced by sign 
manual Page 568 

2. May return proceedings to court for revision. 

3. May remit penitentiary sentence at any time Page 569 

4. Words ' 'approved" and ' 'confirmation' ' equivalent. 

5. Can not correct sentence or add to punishment. 
I. May Express Disapprobation op Court's Action. 

K. New Trial. 

1 . Accused applies after sentence disapproved . 

XV. REVISION BY JUDGE ADVOCATE GENERAL. 

A. In Sentence op Reimbursement — Not Necessary That All the 

Items Should Be Proven Page 510 

B. Department Commander May Refuse Request for a Particular 

Officer as Counsel. 

C. Presumption Is That Proceedings Are Regular. 

1. Facts in record can not be contradicted or proven otherwise than by 
record Page 511 



478 DISCIPLINE : SYNOPSIS. 

XV. REVISION BY JUDGE ADVOCATE GENERAL— Continued. 

D. Irregularities That Do Not Invalidate the Proceedings. 

1. Charges not referred by convening authority. 

2. Convening order dated on Sunday. 

3. Incorrect, but sufficient description of accused. 

4. Failure to comply with one hundredth article of war. . . Page 572 

E. Fatal Defects. 

1. Record must show affirmatively whatever is made essential by 

statutes. 

2. Officer sits as member after lelief . 

3. Court excused judge advocate and required member to act as such. 

4. Error discovered after dissolution of court — procedure, order 

declared inoperative and withdrawn. 

5. Court declined a written statement from accused Page 513 

6. No finding on the charge. 

7. Court without jurisdiction to sentence. , 

8. Convening order null. 

9. Court and judge advocate not sworn. 

10. Record did not show right to challenge extended. 

11 . Trial for fraudulent enlistment — charges failed to allege receipt of 

pay and allowances. 

12. Less than five proceed with business Page 574 

13. Soldier already discharged when second sentence approved. 

F. Grounds for Remission, {^^q also Discipline XIV E 9 d to e.) 

1. Conviction of perjury on one contradicted witness. 

2. Finding of offense different from that charged. 

3. Accused insane during trial. 

4. Accused had as an accomplice given evidence against another in a 

similar case. 

5. Sentence excessive and exceptional Page 575 

6. Disregard by court of statement by accused in extenuation of plea 

of guilty. 

7. Accused through ignorance did not exercise right of challenge. 

8. Court recommends clemency, and new evidence. 

G. Loss of Record. 

1 . After confirmation of sentence Page 576 

H. Illegal Courts. 

1. Civilian convened court-martial. 

2. Unauthorized officer convened court-martial. 

3. Authorized convening officer, but court constituted illegally. 
I. Legal Sentence Irrevocable After Execution. 

1. Military courts not part of judiciary. 

2. Executed legal sentence can not be changed or pardoned by Ex- 

ecutive Page 577 

a. Or by Congress. 

3. Mere irregularities do not alter this principle Page 578 

4. Too late to urge that sentence was not supported by evidence, etc. 
K. Illegal Sentence. 

1. "\Mien offense is not a military one. 
XVI. INFERIOR COURTS-MARTIAL. 

A. Regimental Court. 

1. Has no authority to punish officers. 

B. Garrison Court. 

1. President of, as commanding officer, may act on case. 



DISCIPLINE : SYNOPSIS. 479 

XVI. INFERIOR COURTS-MARTIAL— Continued. 

C. Commanding Officer May Be Accuser. 

D. One Hundred and Third Article of War Page 579 

E. Summary Court. 

1. Can not issue process of attachment. 

2. Has no jurisdiction over capital cases. 

3. Summary court officer certifies witness vouchers, etc. 

4. Post commander. 

a. Action on record must be personal. 

b. May require reconsideration by court. 

c. Should not appoint himself. 

5. Summary court officer the accuser. 

6. Commanding officer of general hospital may appoint. 

7. At brigade posts Page 580 

8. Report of — deposited where. 

a. WTien troops are in camp. 

9. Summary court officer administers oaths. (See Discipline IV 

C4to5. 
F. Department Commander Supervises Proceedings. 
XVn. PUNISHMENT. 

A. Authorized. 

1. By company commander. 

2. By post commander. 

3. By sentence of general court-martial. (See Articles of war and 

Discipline XII B to C) Page 581 

4. Confinement. 

a. Begins at date of order promulgating sentence. 

b. Cumulative sentence. 

c. Time absent in escape to be made good. 

d. Piisoners' mail not to be opened Page 582 

e. Suspended sentence without precedent. 

f. Good-conduct time. 

g. In military prison. 

(1) Prisoners may be required to manufacture articles 

for sale. 

(2) Prisoners may be required to manufacture articles 

for issue. 

(3) All prisoners may be required to work. 

(4) Extent of separation from outside world. 

(5) Private money of general prisoner not subject to for- 

feiture Page 58S 

(6) Guard's authority over prisoner. 

(7) Prisoners required to manufacture clothing. 
h. In penitentiary. 

(1) United States must transport men to the penitentiary. 
i. WTiole guard is responsible that prisoners do not escape. 

B. Unauthorized Punishment. 

1. Summary. 

a. Hanging free from ground or immersion in water. 

b. Striking soldier unnecessarily. 

c. "Tied and gagged" Page 584 

d. Abuse of sentinel. 

e. Forcing a soldier to contribute to company fund. 



480 DISCIPLINE I A 1. 

XVn. PUNISHMENT— Continued. 

B. Unauthorized Punishment — Continued. 

1. Summary — Continued. 

f. Stopping pay under fifty-fourth article of war, as punish- 

ment. 

g. For offense of which accused has been acquitted.. Page 585 

2. By sentence of general court-martial. 

a. Ofl5cer. 

(1) Reduction to the ranks. 
XVm. BOARDS OF INVESTIGATION. 

A. Can Not Try or Sentence. 

B. Investigation of Case of a Dismissed Officer Page 586 

C. Witness Fees Not Allowed. 

D. Reporter Must be Authorized by Secretary of War. 

E. As to Character of Enlisted Men. (See Discharge.) 

I A 1. A party of soldiers left their camp at night in time of war 
without leave contrary to positive orders and proceeded to a neigh- 
boring town, where they created a disturbance. Their commanding 
officer followed them, found them in a saloon, and was about to 
arrest them, when they broke from him, and knowing who he was 
disregarded his order to halt and ran away from him. He repeated 
his order, and not being obeyed and having no other means of detain- 
ing them, fired upon them while fleeing with a pistol, and shot and 
kifled one of them. Held, that he did not use undue force in endeavor- 
ing to maintain discipline and to arrest the offenders whom he was 
endeavoring to return to their stations, and that he was not guilty of 
an offense requiring punishment, and that his conduct under the cir- 
cumstances in which he was placed was justified, and that the cir- 
cumstances, instead of meriting disgraceful punishment, indicate 
that the officer should be commended for the vigor and courage with 
which he suppressed what approximated to a mutiny.^ R. 11, 592, 
Mar., 1865. 

I A 2. The military authorities are not empowered to make forcible 
entrance into a private dwelling to effect an arrest of a soldier.^ C. 
395, Oct., 1894;^ 23930, Oct 2 and 8, 1908. 

I A 2 a. Held, that military arrests may be made in such parts of 
public houses as are devoted to public purposes. C. 395, Oct., 1894- 

1 B 1 . A soldier while confined in arrest should not be fettered or 
ironed except where such extreme means are necessary to restrain 
him from violence, or there is good reason to believe that he will 
attempt an escape and he can not otherwise be securely held. R. 30, 
483, July, 1870; C. 18878, Dec. 9, 1905. 

I B 2. The status of being in arrest is inconsistent with duty. 
R. 2, 77, Mar., 1863. Placing an arrested officer or soldier on duty 
terminates his arrest. R. 26, 114, Oct., 1867. A soldier in arrest 
in quarters may be required to do cleaning or police work about his 
quarters which otherwise other soldiers would have to do for him. 
P. 49, 329, Oct., 1891. Releasing a soldier from arrest and requir- 
ing him to perform military duty, after his trial and while he is 

^ This officer was tried by court-martial and found guilty of manslaughter, but the 
sentence was disapproved in General Court-Martial Order 177, War Department, 1865. 

2 See Circ. 12, A. G. O., 1894. 

^ This opinion concurred in by the Attorney General. See his letter of Oct. 12, 
1894, marked Office of the Secretary, War Department, Oct. 12, 1894. 



DISCIPLINE IBS. 481 

awaiting the promulgation of his sentence, can be justified only by 
an extraordinary exigency of the service. R. 7, 234, Feb., 1864. 

IBs. An officer under arrest is not disqualified to prefer charges. 
R. 5, 348, Nov., 1863; 16, 68, May, 1865. 

I C. No court-martial, military commander, or other military 
authority is empowered to accept bail for the appearance of an 
arrested party or to release a prisoner on bail. Bail is wholly 
unknown to the military law and practice; nor can a court of the 
United States grant bail in a military case.^ R. 9, 260, June, 1864; 
21,258, Mar., 1866. 

I D 1. Except in the class of cases indicated in article 24, only 
"commanding officers" can place commissioned officers in arrest. 
(See A. R. 930 of 1908.) The commanding officer thus authorized 
is the commander of the regiment, separate company, detachment, 
post, department, etc., in which the officer is serving. R. 26, 642, 
July, 1868. Where a company is included in a post command the 
commander of the post, rather than the company commander, is 
the proper officer to make the arrest of a subaltern of the company. 
R. 29, 304, Oct., 1869. Otherwise, however, as to a regimental com- 
mander whose regiment forms part of the garrison of a post. 0. 
26140, June 29, 1910. 

I D 2. An arrest is by no means a privilege of an officer. He can 
not under any circumstances demand it, not can he complain if 
brought to trial that injustice or wrong has been done Mm because 
tliis mark of disapprobation was not put upon him. R. 17, 419, Oct. 
12, 1865; 19, 419, Feb. 15, 1866. 

I D 3. An officer may be put in arrest by a verbal or written order 
or communication from an authorized superior, advising him that 
he is placed in arrest or will consider himself in arrest, or in terms 
to that effect; the reason for the arrest need not be specified. At 
the same time he is usually required to surrender his sword, though 
this formality may be dispensed with. R. 2, 77, Mar. 13, 1863; 19, 
419, Feb. 15, 1866. 

I D 4. It is clearly to be inferred from the Army Regulations that 
unless other limits are specially assigned him an officer in arrest must 
confine himself to his tent or quarters. It is generally understood, 
indeed, that he can go to the mess house or other place of necessary 
resort. It is not unusual, however, for the commander, in the order 
of arrest, to state certain limits within which the officer is to be re- 
stricted, and, except in aggravated cases, these are ordinarily the 
limits of the post where he is stationed or held. R. 5, 434, Dec, 1863. 

I E 1 . Held that it is proper for a company commander to expressly 
delegate to noncommissioned officers of his company the power to 
place enlisted men in arrest subject to the condition that such action 
will be reported at once to him. This is with a view of providing a 
means of restraint at the instant when restraint is necessary. Held 
further that a similar delegation of authority to confine a junior is 
justified by the custom of the service for nearly a century. C. 
18878, Dec. 9, 1905. 

I E 2. Soldiers held in military arrest, while they may be subjected 
to such restraint as may be necessary to prevent their escapmg or 

1 The act of July, 1864, c. 253, s. 7 — which authorized a judge or commissioner of a 
United States district court to admit to bail a contractor or mspector, amenable to 
trial by court-martial under the then existing law, and arrested with a view to trial 
thereby — is no longer operative. 



482 DISCIPLINE I E 3. 

committing violence, can not legally be subjected to any summary 
punishment.! R. 31, 597, Aug., 1871; G. 18878, Dec. 9, 1905; 26070, 
Jan. 15, 1910; 2611^, June 5, 1910. 

I E 3. Held that an enlisted man who has been tried and convicted 
by the civil courts and released on parole may be arrested and 
brought to trial by military authority for any military offenses 
charged agamst him. C. 23264, Jan. 6, 1912. 

II A 1. Military offenses proper are simply violations of the laws, 
orders, or rules of discipline governing the military state. Such 
offenses are neither ''felonies" nor "misdemeanors" in the legal sense 
of those terms, nor can an officer or soldier, convicted of an offense of 
this class, properly be subjected to any of the consequences attaching 
to a felony. R. 53, U, Sept., 1886; P. 27, 71, Sept., 1888. 

II A 1 a. Where a specification alleged that the accused was 
absent without leave at various times between two dates, 20 days 
apart, held iho-t the same was defective and subject to exception as 
being double, each such absence being a substantive and distinct 
offense.2 R. 10, 471,Oct., I864, 

II A 1 b. Where the specification to a charge of violation of 
the sixtieth article alleged the presentation by the accused of a fraudu- 
lent claim for rations furnished for recruits, and also for lodgings fur- 
nished for the same recruits at the same time, held that the specifica- 
tion related to one transaction and was not therefore to be necessarily 
regarded as double or defective, in view of the liberal rules of pleading 
applicable to mihtary charges. R. 10, 392, Oct., 1864- 

II A 1 (1). A specification averring a general incapacity induced 
by habitual intoxication does not set forth a military offense. The 
accused in such a case should be charged with the acts of drunkenness 
committed, as separate and distinct instances of offense.^ R. 33, 458, 
Nov. 1872; 50, 469, June, 1886. 

II A 1 c (2). A charge of ' ' worthlessness, " with specifications set- 
ting forth repeated instances of arrests, confinements in the guard- 
house, or trials and convictions of the accused for slight offenses, held 
an insufficient pleading; such instances not constituting militarv 
offenses, but merely the punishments or penal consequences of such 
offenses. R. 25, 664, June, 1868; 28, 253, Dec, 1868; 33, 169, 208, 
281, 285, 345 and 4I6, July to Oct., 1872. 

II A 1 d. Held that an officer or enhsted man has no right to peti- 
tion Congress through any other than military channels, and if he does 
so it is a military offense. C. 24351, Jan. 18, 1909. ^ 

II B. Military charges, though commonly originating with military 
persons, may be initiated by civiHans; indeed it is but performing a 
public duty for a civihan, who becomes cognizant of a serious offense 
committed by an officer or soldier, to bring it to the attention of the 
proper commander. C. 26517, May 12, 1910; 26591, Apr. 15, 1910. 
So a charge may originate with an enlisted man. But, by the usage 
of the service, all mihtary charges should be forrrmlly preferred by, 



1 See G. O. 23, Dept. of the East, 1863; do. 26, Dept. of California, 1866; do. 23, 
Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871. And compare remarks of 
Justice Story in Steere v. Field, 2 Mason, 486, 516. 

2 In the military, as in the civil practice, double pleading, i. e., specifications setting 
forth two (or more) distinct offences— especially if chargeable under different arti- 
cles of war — is properly condemned, and m sundry cases the conviction and sentence 
have been disapproved on account of the duplicity in law of the pleadings. See G. C. 
M. O., 80, War Dept., 1875; G. O. 3, 83, Dept. of the Missouri, 1863; do. 49, Dept. of the 
Ohio, 1864. 

»See G, 0. 11, War Dept., 1873. 



DISCIPLINE II C. 483 

i. e., authenticated by the signature of a commissioned officer. 
Charges proceeding from a person outside the Army, and based upon 
testimony not in the possession or knowledge of the military authorities, 
should in general be required to be sustained by affidavits or other 
reliable evidence, as a condition to their being adopted. R.16, 4^3, July, 
1865: 41, 612, Aug., 1879; 42, 202, Mar., 1879; P. 13, 231, Nov., 1886. 

II C. Any officer may prefer charges; an officer is not disqualified 
from preferring charges by the fact that he is himself undercharges or in 
arrest. R. 1, 467, Dec. 1862; 5, 348, Nov., 1863; 16, 68, May, 1865; C. 
22120, Sept. 21, 1907. Chargesshould be preferred to the authority em- 
powered to convene the court for their trial. R. 4^, 202, Mar., 1879. 

II D 1. In our practice, unlike that of the English, a military 
charge properly consists of two parts — the technical "charge" and 
the "specification." The former designates by its name, particular 
or general, the alleged offense; the latter sets forth the facts sup- 
posed to constitute such offense.^ R. 7, 600, Apr., I864. 

II D 1 a. There may be one or more specifications to a particular 
charge. It is the office of the specifications to specify the particu- 
lar acts done or omitted by the accused with time and place, wliich 
constitute the offenses charged; each specification to set forth but 
one instance of offense. R. 5, 613, Jan., I864; P. 65, 373, July, 
1894; C. 4813, 1898. 

II D 1 b. The specification should be appropriate to the charge. 
A charge of "conduct to the prejudice of good order and military 
discipline," with a specification setting forth a violation of a specific 
article, is an irregular and defective pleading, and so of course is a 
charge of a specific offense with a specification describing not that 
but a different specific offense, or a simple disorder or neglect of 
duty. R. 24, 198, Jan., 1867. 

II D 1 c. A specification, in alleging the violation of an order 
which has been given in writing, or of any written obligation — as 
an oath of allegiance, parole, etc. — should preferably set forth the 
writing verbatim, or at least state fully its substance, and then 
clearly detail the act or acts which constituted its supposed viola- 
tion. R. 3, 649, Sept., 1863. 

II D 2. The same particularity is not called for in a military 
charge which is required in an indictment.^ C. 144^^, Apr. 15, 1903. 
The essentials of a military charge are: 1. That it shall be laid under 

^ An accusation against an officer or soldier, not thus separated in form, would be 
irregular and exceptional in our practice, and, till amended, should not be accepted 
as a proper basis for proceedings under the military code. 

- In regard to the proper form for a military charge, Atty. Gen. Gushing (7 Op., 
601, 603) says: "There is no one [form] of exclusive rigor and necessity in which to 
state military accusations." He adds further: "Trials by court-martial are governed 
by the nature of the service, which demands intelligible precision of language, but 
regards the substance of things rather than their forms. * * * The most bald 
statement of the facts alleged as constituting the offense, provided the legal offense 
itself be distinctively and accurately described in such terms of precisions as the rules 
of military jurisprudence require, will be tenable in court-martial proceedings, and 
will be adequate ground-work of conviction and sentence." So it is observed by 
Atty. Gen. Wirt (1 Ops., 276, 286) that "all that is necessary" in a military charge 
is that it be "sufficiently clear to inform the accused of the military offense for which 
he is to be tried, and to enable him to prepare his defense." And see Tytler, 209; 
Kennedy, 69. It is ably remarked by Gould (Pleading, p. 4) that "all pleading is 
essentially a logical process;" and that, in analyzing a correct pleading, "if we 
take into view, with what is expressed, what is necessarily supposed or implied, we 
shall find in it the elements of a good syllogism." But it can hardly be expected 
that military charges in general will stand this test. 



484 DISCIPLINE II D 3. 

the proper article of war or other statute. 2. That it shall set forth 
(in the specification) facts sufficient substantially to constitute the 
particular offense. These essentials being observed, the simpler, 
and less encumbered with verbiage and technical terms a mihtary 
charge is, the better, provided it be expressed in clear and intelli- 
gible EngHsh. However inartificial the pleading may be, it will 
properly be held sufficient as a legal basis for a trial and sentence, 
provided that the charge and specification, taken together, amount 
to a statement of a military offense either under a specific article or 
under the general article. No. 62. R. 16, 551, Sejyt, 1865; 27, 52^, 
Feb., 1869; C. 23^81, June 25,1908. 

II D 3. The accused is entitled to know for what particular act 
he is called to account. The charge, therefore, should be expressed 
in terms sufficiently definite to give liim such notice. Thus Jield 
that a specification under the sixty-second article of war in the 
case of an officer wliich alleged not a specific act of offense, but that 
an habitual course of conduct, incapacitated the accused for service 
or for the performance of liis proper duty, was seriously defective 
and subject to be stricken out on motion.^ R. 50, Jf.69, Jan., 1886. 

II D 4. Where an offense is clearly defined in a specific article, it 
is irregular and improper to charge it under another specific article. 
So, where the article in which the offense is defined makes it punish- 
able with a specific punishment to the exclusion of any other, it is 
error to charge it under an article, such as the sixty-second, which 
leaves the punishment to the discretion of the court. R. 2, 51, 
Mar., 1863; 11, 312, Dec, 1864; H, 599, June, 1865; 20, 533, Apr., 
1866; 28, 575, May, 1869. On the other hand, it is equally erro- 
neous to charge under a specific article, making mandatory a par- 
ticular punishment, an offense properly charged only under article 
62. R. 1, 463, Dec, 1862; 27, 413, Dec, 1868; 28, 575, supra; G. 
17405, Jan. 27, 1905; 19330, Mar. 10, 1906. 

II D 5. To charge a military offense as a violation of a certain article 
of war, naming it by its number, is regular and proper. When a 
statute or an article of war enacts that whosoever shall do a particular 
act shall receive a specified punishment, it thereby prohibits, by the 
strongest possible implication, the offense named. The prohibition 
is part and parcel of the statute or article — is, indeed, its essence — and 
the act committed is necessarily in violation of it, and is properly 
averred so to be. Announcing a penalty or punishment for an offense 
is the legal language or mode for prohibiting it, and this language is so 
well understood as to have led to great uniformity in the use of the 
form in question. R., 5, 77, Oct., 1863; 7, 457, Mar., I864. 

II D 6. The order fixing maximum punishments prescribes different 
limits of punishments for wilf uUy and for negligently allowing (by an 
enlisted man) a prisoner to escape, as separate offenses, under the 
sixty-second article of war. A charge for suffering an escape under 
this article should therefore indicate in the specification whether the 
act is alleged to be willful or negligent only. P. 48, 220, July, 1891. 

II D 7. Properly to warrant the joining of several persons in the 
same charge and the bringing them to trial together thereon, the 
offense must be such as requires for its commission a combination of 

^ In such cases the officer should be ordered before a retiring board under section 
1252 of the Revised Statutes and not brought to trial by court-martial. 



DISCIPLINE II D 8 a. 485 

action and must have been committed by the accused in concert or in 
pursuance of a common intent. The mere fact of their committing the 
same offense together and at the same time, although material as 
going to show concert, does not necessarily establish it. Thus the fact 
that several soldiers have absented themselves together without 
leave, will not, in the absence of evidence indicating a conspiracy or 
concert of action, justify their being arraigned together on a common 
charge, for they may merelv have been availing themselves of the 
same convenient opportunity for leaving their station. Nor is 
desertion, of wliich the gist is a certain personal intent, ordinarily 
chargeable as a joint offense.* R., 5, Ji!9, Dec, 1863; 12, ^39, June, 
1865; 21^, 468, Apr., 1867; 32, 254, ^33, Feh., 1872; 33, 211, 434, Oct., 
1872; a 12956, July 11, 1902.^ 

II D 8 a. Where a specification to a charge preferred by a superior 
against an inferior officer, instead of referring to the former m the 
third person, alleging that the accused addressed abusive language to 
"me," and committed an assault upon "me," without naming or other- 
wise indicating the subject of the abuse or assault, held that such a 
form, though supported by some of the English precedents, was not 
sanctioned by our practice, and that, on objection being made to the 
same by the accused, the court would properly either require that the 
specification be amended, or that, in incorporating the charge in the 
record, the name of the preferring officer be added. R. 3, 429, Aug., 
1863. 

II D 8 b. It is not essential to state in a specification t\\efull Chris- 
tian name of the accused, or other party required to be indicated. 
Only such name or initial need be given as will be sufficient unmis- 
takably to identify the party. R. 24, 299, Feb., 1867; C. 16974, 
Oct. 5, 1904; 22215, Nov. 4, 1907. 

II D 9. The time and place of the commission of the offense charged 
should properly be averred in the specification in order that it may 
appear that the offense was committed within the period of limitation 
fixed by the one hundred and tliird article, and to enable the accused 
to understand what particular act or omission he is called upon to 
defend.2 R. 1, 463, Dec. 1862;^ 5, 613, Jan., 1864. 

II D 9 a. Where the exact time or place of the commission of the 
offense is not known, it is frequently preferable to allege it as having 
occurred "on or about" a certain date or time, or "at or near" a certain 
locality, rather than to aver it as committed on a particular day or 
between two specified days, or at a particular place. There is no 

1 See G. O. 78, War Dept., 1872, issued by the Secretary of War in accordance with 
opinions, previously given, of the Judge Advocate General. 

But where two or more soldiers have in fact deserted together as the result of a 
concerted plan they may properly be jointly or severally charged with desertion, the 
specification in either case describing in proper terms a "desertion in the execution 
of a conspiracy." See order prescribing maximum punishments, Court-Martial 
Manual (1908), p. 52. 

Where two or more soldiers have, as the result of a concerted plan, attempted to 
desert, they may properly be charged jointly or severally with conspiracy to desert, 
as well as an attempt to desert, to the prejudice of good order and military discipline. 

In any case under the charge of desertion the fact of concert may be put in evidence 
as illustrating the animus of the act committed. 

^ As to the latitude allowable in the allegation of time in military pleadings, com- 
pare 1 Op. Atty. Gen., 295, 296. 

In the civil practice, "nothing is better settled than that proof of guilt is not con- 
fined to the day mentioned in the indictment. It may extend back to any period 
previous to the finding of the bill and within the statutory limit for prosecuting the 
offense," McBryde v. State, 34 Ga., 203. 



486 DISCIPLINE II D 9 b. 

defined construction to be placed upon the words "on or about" as 
used in the allegation of time in a specification. The phrase can not 
be said to cover any precise number ol days or latitude in time. It 
is ordinarily used in military pleading for the purpose of indicating 
some period, as nearly as can be ascertained and set forth, at or 
during which the offenses charged are believed to have been com- 
mitted — in cases where the exact day can not well be named. And 
the same is to be said as to the use of the words ''at or near" in con- 
nection with the averment of place. These terms "on or about" 
and "at or near" are, however, not unfrequently (though unneces- 
sarily) employed in practice where the exact time or place is known 
and can readily be alleged. R. 26, 437, Feb., 1868. 

II D 9 b. An offense of commission may not have been com- 
pleted on any particular day. Thus held that the allegations of time 
and place were sufficient in a specification in which it was set forth 
that the offense charged (which consisted in an improper disposition 
of public property) was committed by the accused "while en route 
between Austin, Tex., and Waco, Tex., between the 5th and 25tli 
days of May, 1867." R. 25, 100, Sept., 1867. 

II D 10 a. A reasonably exact allegation of the time is also impor- 
tant in some cases-rcspecially those of desertion and absence without 
leave — in order that the accused, if subsequently brought to trial for 
the same offense, or, what is the same thing in law, for an offense 
included in the original offense, may be enabled (by an exhibition 
of the record) properly to plead a former acquittal or conviction of 
that offense. R. 7, 348 and 513, Apr., I864. 

II D 10 b. The allegation of time in a specification should be as 
nearly defined as the facts will permit; but where the act or acts 
charged extended over a considerable space of time it may be nec- 
essary to cover such period in the allegation. Thus allegations of 
''from March to September, 1887," and "from May to October, 
1888," have been countenanced in a case in which the accused was 
charged with the neglect of a duty the performance of which was 
thus continuous.! P. 31, 357, Apr., 1889. 

II D 10 c. The same exactness in the averment of time is in general 
scarcely required, where the offense charged is one of omission as 
where it is one of the commission of a specific act. It is sufficient in 
the former case to allege that the offense occurred between certain 
named dates not unreasonably separated. R. SO, 488, July, 1870. 

II D 10 d. Wliere it was alleged in a specification that the accused 
was drunk on duty at some time or times during a period of 70 days, 
held that the specification did not give sufficient notice to the accused 
of the specific offense which he was required to defend, and was 
therefore uncertain and insufficient. ^ R. 1, 463, Bee, 1862. 

II D 11 a. Wliile it is in general irregular to plead matter of 
evidence, there is no objection to noting in brief in the specification 
the immediate result or effect of the act charged, as a circumstance 
of description illustrating the character and extent of the offense 
committed. Thus while a homicide, if amounting to murder, and 
capital under section 5339, R. S., or by the law of the State, etc., 
can not as such be made the subject of a military charge in time of 
peace, yet a capital homicide, where it has been committed in con- 

1 See G. C. M. 0. 21, A. G. O. of 1889. 

2 Compare cases in G. O. 193, Army of the Potomac, 1862; do. 98, Dept. of New 
Mexico, 1862. 



DISCIPLINE II D 11 b. 487 

nection with or as a consequence of a specific military offense charged 
against the accused — as, for example, "Mutiny" or "Offering vio- 
lence to a superior officer"— may properly be stated in the conclu- 
sion of the specitication as matter of aggravation and as indicating 
the animus of the accused or the amount of force employed. R. 34, 
478, Sept, 1873. 

II D 11 b. It is illogical and faulty pleading to charge a secondary 
offense in lieu o/the actual or principal offense, of which that charged 
was merely a consequence or incident. R. 27, 446, Jan., 1869. 

II D 11 0. Undue multiphcation of charges or forms of charge is to 
be avoided. Thus charges should not in general be added for minor 
offenses which were simply acts included in and going to make up 
graver offenses duly charged. R. 15, 441, July, 1865. 

II D 1 1 d. A charge or specification should not be expressed in the 
alternative — as that the accused ''did sell or through neglect lose," etc. 
The selUng, through neglect losing, and through neglect spoihng are 
distinct offenses and should be so charged. P. 28, 35, 110, Nov., 
1888; 29, 162, Jan., 1889; 30, 83, Feb., 1889; 51, 343, Jan., 1892; 
58, 139, Feb., 1893; 62, 449, Dec, 1893; 65, 384, July, 1894. 

Such a charge is irregular and defective and upon motion may be 
stricken out or required to be amended. R. 51, 248, Dec, 1886, and 
297, Jan., 1887; C. 10345, July 31, 1901. 

II D 12 a. The signing of charges, hke orders, with the name of an 
officer, adding "by the order of" his commander, is unusual and not 
to be recommended. Charges, where not signed voluntarily by the 
officer by whom they are preferred, are, in practice, usually sub- 
scribed by the judge advocate of the court. R. 34, 598, Nov., 1873; 
47, 521, Sept., 1884; 020754, May 27, 1910. 

II D 12 a (1). Charges, though prepared in the Office of the Judge 
Advocate General, are not in practice signed by him. If not signed 
by the officer actually preferring them, they will properly be authen- 
ticated by the signature of the acting judge advocate of the depart- 
ment, or, preferably, by the judge advocate of the court, R. 47, 521,' 
Sept., 1884; P. 60, 257, June, 1893. 

II D 13 a. The disrespect indicated in the twentieth article of war 
may consist in acts or words; ^ and the particular acts or words 
relied upon as constituting the offense should properly be set forth 
in substance in the specification.^ It must be shown in evidence 
under the charge that the officer offended against was the "command-^ 
ing officer" of the accused.^ The commanding officer of an officer or 
soldier, in the sense of article 20, is properly the superior who is 
authorized to require obedience to his orders from such officer or sol- 
dier, at least for the time being. Thus, where a battalion was tem- 
porarily detached from a regiment and placed under the orders of the 
commander of a portion of the army distinct from that in which the 
main part of the regiment was included, held, that it was the com- 
mander of this portion who was the commanding officer of the de- 
tachment; and that the use by an officer of such detachment of dis- 
respectful language in reference to the regimental commander (who 
had remained with and in command of the main body of the regi- 

1 G. 0. 44, Dept. of Dakota, 1872. And see G. C. M. O. 28, War Dept., 1875; G. O. 
47, Dept. of the Platte, 1870. 

2 G. C. M. O. 35, Dept. of the Missouri, 1872. 
8 G. O. 53, Dept. of Dakota, 1871. 



4SS DISCIPLINE II D u a. 

merit) was properly chargeable, not under this article, but rather 
under the sixty-second. R. 18, Ifil , Nov., 1865; C. 1876J^, Oct. 2, 1906. 

II D 14 a. In charging a striking or doing of violence to a superior 
officer under article 21, it is allowable, in a case where the assault 
was fatal, to add in the specification, ''thereby causing his death," as 
indicating the measure of violence employed. R. 29, 485, Dec, 1869. 

II D 15 a. In framing a charge under this article, it will not in gen- 
eral be essential to allege, in connection with the date of the offense, 
or to show by evidence, that the act was committed at a time of war, 
etc.; this being a fact of which a court will ordinarily properly take 
judicial notice.^ R. 17, 396, Oct., 1865; C. 13309, July 25, 1903; 
13653, Feb. 18, 1903; 13770, Dec. 6, 1902; 15711, Jan. 4, 1904. 

II D 16 a. In framing a charge under article 60 of knowingly and 
wilfully misappropriating, etc., public funds,^ it is not necessary to 
allege an intent to defraud the United States. It is the act of the 
misappropriation described itself which constitutes the offense, irre- 
spective of the purpose or motive of such act. R. 5, 498, Dec, 1863; 
23, 77-81, June, 1866; 0. 23277, Nov. 30, 1908. 

II D 16 b. In charging embezzlement under the sixtieth article of 
war, lield tliat it is not necessary to aver in terms that the money or 

Eroperty was ''furnished or intended for the mihtary service of the 
t^nited States if that fact sufficiently appears from other allegations." 
R. 47, 476, Sept. I884. 

II D 17 a. The use of abusive language toward a commanding 
officer may constitute an offense under article 61. But, both as a 
matter of correct pleading and because the twentieth article author- 
izes a punishment less than dismissal, the language should be so 
particularized as to show that it constituted an offense more grave 
than the mere disrespect which is the subject of the latter article. 
A specification not thus setting forth and characterizing the epithets 
or words employed wiU be subject to a motion to make definite or 
strike out. R. 56, 562, Sept., 1888. 

II D 18 a. Drunkenness not on duty, or when off duty, when 
amounting to a "disorder," should be charged under article 62, 
unless (in a case of an officer) committed under such circumstances 
as to constitute an offense under article 61. R. 31, 52, Nov., 1870. 

II D 18 b. A crime, disorder, or neglect, cognizable under article 
62, may he charged either by its name simply as "larceny," 
"drunkenness," "neglect of duty," etc.; or by its name with the 
addition of the words, "to the prejudice of good order and mihtary 
disciphne;" or simply as "conduct to the prejudice of good order 
and military discipline;" or as "violation of the sixty-second article 
of war." It is immaterial in which form the charge is expressed, 
provided the specification sets forth facts constituting an act preju- 
dicial to good order and mihtary discipline. R. 7, 4^^, Mar., 1864; 
9, 328, Mar., 1864; H, 228, Dec, 1864; 28, 486, Apr., 1869. When- 
ever the charge and specification taken together make out a statement 
of an act clearly thus prejudicial, etc., the pleading will be regarded 
as substantially sufficient under tliis general article. R. 16, 316, 551, 
June and Sept., 1865. 

' See the application of this principle to the fact of the existence of the late Civil 
War in Justice Field's charge to the grand jury in United States -i;. Greathouse, 4 Sawyer, 
457. 

^ "All money lawfully in the hands of a public officer, and for which he is account- 
able, is money of the United States." United States v. Watkins, 3 Cranch C. C, 441, 
Fed. Cas. 16649. 



DISCIPLINE II D 18 C. 489 

II D 18 c. A charge of "conduct to the prejudice," etc., with a 
specification setting forth merely trials and convictions of the 
accused for previous offenses, is not a pleading of an offense under 
article 62 or of any mihtary offense. R. 27, SSl,^ Nov., 1868. 
So of a charge of "habitual drunkenness, to the prejudice," etc., 
with a specification setting forth instances in which the accused has 
been sentenced for acts of drunkenness. R. 33, 175, July, 1872. 
Such charges, indeed, are in contravention of the principle that a 
party shall not be twice tried for the same offense. So, a specifica- 
tion under the charge of "conduct to the prejudice," etc., which 
sets forth not a distinct offense, but simply the result of an aggrega- 
tion of similar offenses, is insufficient in law. R. 36, 432, May, 1875. 
Where the specifications to such a charge, in a case of an officer, set 
forth tiiat the accused was "frequently" drunk, "frequently" 
absented himself without authority from his command, etc., lield 
that these specifications were properly struck out by the court on 
the motion of the accused. In such a case the only correct pleading 
is a general charge under this article, with specifications setting 
forth — each separately — some particular and specific instance of 
offense. R. 38, 211, Aug., 1876. 

II D 18 d. A breach of an Army regulation, imposing a duty upon 
an officer or soldier, is in general chargeable as "conduct to the 
prejudice of good order and mihtary disciphne," and punishable 
under article 62. R. 39, 283, Nov., 1877; 0. 19330, Mar. 10, 1906. 

II D 19. In the case of an officer tried by a court-martial in the 
Pliihppine Islands and, upon conviction, sentenced to a term of 
imprisonment in a penitentiary, held that the cliief, if not the sole, 
purpose in bringing an officer to trial under the sixty-first article 
IS to obtain the judgment of the court upon the character of his 
acts or conduct from the point of view of that article. If, upon a 
full showing of the facts, liis acts appear to be unbecoming an officer 
and a gentleman, then the article requires that he shall be separated 
from the service. If his conduct also constitutes a crime, then the 
particular criminal offense which has been committed should be, 
and habitually is, charged under the proper article of war with a 
view to the imposition of such other or additional punishment as 
may be warranted by the nature and extent of liis offending. C. 
17667, Mar. 18, 1905. 

II D 20. General prisoners who have been dishonorably dis- 
charged and are held in execution of sentences of imprisonment at 
hard labor are citizens and, as such, can not commit acts in violation 
of the twenty-first article of war. Held that acts of disobedience 
committed by general prisoner should be charged under article 62. 
a 16220, Apr. 26, 1904. 

II E. A list of the proposed witnesses is no part of the military 
charge, though such a list may properly be and is not unfrequently 
appended to a charge. In serving upon the accused a copy of the 
charges, it is not essential, though the better practice, to add a copy 
of the fist of witnesses where one is appended to the original charges.^ 
R. 25, 350, Feb., 1868. 

II F 1. It is a reprehensible practice to allow charges to He long 
dormant before being preferred. Charges should not be delayed but 
should be brought to trial as soon as practicable and while the evi- 

' Appending such a list does not preclude the prosecution from calling witnesses not 
named therein. 



490 DISCIPLINE II F 2. 

dence is fresh ; a delay of five months being remarlced upon as preju- 
dicial to the administration of justice and unfair to the accused. 
P. 24, 283, May, 1888; C. 21889, Aug. 5, 1907. 

II F 2. It may sometimes be expedient where the offenses are 
slight in themselves and it is deemed desirable to exhibit a continued 
coiu"se of conduct, to wait, before preferring charges, till a series of 
similar acts have been committed, provided the period be not unrea- 
sonably prolonged ; but, in general, charges should be preferred and 
brought to trial immediately or presently upon the commission of the 
offenses. Anything hke an accumulation, or saving up, of charges, 
through a hostile animus on the part of the accuser, is discounte- 
nanced by the sentiment of the service.^ R. 12, 348, Feb., 1865; C. 
17667, Mar. 18, 1905. 

II G 1 . The statement as to enhstments, discharges, etc., req^uired by 
the Army Regulations to be furnished with the original charge to the 
convening authority, is not intended to be accompanied by a declara- 
tion, on the part of the commanding officer of the accused, as to his 
present character. The regulation does not call for the officer's opin- 
ion on tho subject, or contemplate that the character of the accused 
will be taken into consideration at this time. P. 39, 459, Mar., 1890; 
43, 10, Sept., 1890.^ 

II H 1. A material amendment of a charge should properly be made 
before the actual trial. Where a court-martial, after the trial was 
concluded, directed a specification to be amended so as to render it 
more definite as to time and place, and then caused the accused to 
be arraigned and to plead over again, nunc pro tunc, held that its 
action was without sanction of law or precedent. B. ^5, 315, Feb., 
1884; 0. 17547, Feb. I4, 1905. _ _ 

II H 2. A middle name or initial is no part of a person's name in 
law, and, except where it is necessary to identify the individual, may 
be omitted from the charge without affecting the validity of the find- 
ing or execution of the sentence. P. 34, 400, Aug., 1889. So, a 
misnomer in a charge, consisting of an erroneous middle name or ini- 
tial, may be dirsegarded in a charge unless the accused moves to 
strike out or interposes an objection, in the nature of a plea in abate- 
ment, when he must also state his true name. The charge may then 
be amended accordingly in court, without delaying the proceedings. 
R. 52, 675, Oct., 1887. 

II I. A withdrawal of charges constitutes no legal bar to their being 
subsequently revived and re-preferred. Charges, however, once for- 
mally withdrawn, will not in general properly be revived except upon 
new material evidence being obtained. R. 11, 202, Dec, 1864; 28, 
370, Feb., 1869. Charges once accepted as a sufficient basis for 
action, by the commander competent to convene a court for their 
trial, can not properly be withdrawn except by liis authority. ^ R. 21, 
56, Nov., 1865. 

' See G. C. M. O. 71, Hdqrs. of the Army, 1879. 

^ How far charges may be amended by the judge advocate before the organization 
of the court depends mainly upon his authority, general or special, to make amend- 
ments. After the arraignment, amendments of form may always be made, with the 
aesen'. oi the accused or by the direction of the court; and so may slight amendments 
of substance not so modifying the pleading as to make it a charge of a new and distinct 
offense. An amendment so substantial as materially to modify the "matter" before 
the court will not in general be authorized (see Eighty-fourth article), and any 
amendment whatever of substance should be allowed by the court with caution and 
subject to the right of the accused to apply for a continuance (see Ninety-third 



DISCIPLINE II K 1. 491 

II K 1 . The original charges referred to a court-martial are a public 
document. Held that after the arraignment and the charges have 
been copied into the record, the original charges have served their 
purpose. The place of deposit for tliis public record is the office 
of the judge advocate of the convening authority. C. 15833, Jan. 
28, 1904. 

III A. Held, that regulations which relate to the constitution of 
the court and not merely to the method of procedure are always 
mandatory. C. 5325, Nov. 15, 1898; 5484, Dec. 9, 1898; 6121, 
Mar. 24, 1899. 

Ill B. The President is empowered to convene general courts- 
martial, not merely in the class of cases specified in the seventy- 
second article of war (viz, where a military officer, thereby authorized 
to convene such a court, is the "accuser or prosecutor" of an officer 
in his command whom it is desired to bring to trial), but, generally, 
and in any case, by virtue of his authority as Commander in Chief 
of the Army. As such, he is authorized to give orders to his subordi- 
nates, and the convening of a court-martial is simply the giving of an 
order to certain officers to assemble as a court ana exercise certain 
powers conferred upon them, when so assembled, by the Articles of 
War. This general power has been exercised in repeated instances 
by the President since the formation of the Government. Indeed, 
if the same could not be exercised, it would be impracticable, in the 
absence of an assignment of a general officer to command the Army, 
to administer military justice in a considerable class of cases of officers 
and soldiers not under the command of any department, etc., com- 
mander, as a large proportion of the officers of the General Staff for 
example.^ R. 33, 603, Dec, 1872; C. 1671, Apr. 3, 1906. 

Ill B 1 . A court-martial convened by the Secretary of War, held, 
legally constituted; such act of the Secretary being administrative 
and in law the act of the President whom he represents. The order 

article). As to the authority of the court or judge advocate to strike out or withdraw 
a charge or specification. See G. O. 64, Dept. of the Cumberland, 1867; do. 98, id., 
1868; do. 85, Dept. of the South, 1874; G. C. M. O. 36, 42, Dept. of the Platte, 1877; 
do. 13, id., 1878; do. 48, Mil. Div. of the Pacific and Dept. of California, 1880. 

' The authoritjr of the President as Commander in Chief to institute general courts- 
martial has been in fact exercised from time to time, from an early period, in a series 
of cases, commencing with those of Brig. Gen. Hull, Maj. Gen. Wilkinson, and Maj. 
Gen. Gaines, tried in 1813-1816, and of Bvt. Maj. Gen. Twiggs, tried in 1858. For 
further instances of the exercise of the President's authority as Commander in Chief 
to convene general courts-martial, see the following orders: Par. 2, S. O. 151, Hdqrs. 
of the Army, A. G. O., Washington, June 30, 1884; Par. 3, S. O. 282, Hdqrs. of the 
Army, A. G. O., Washington, Dec. 2, 1898; S. O. 1, W. D., A. G. O., Washington, 
Jan. 18, 1899; S. O. 1, W. D., A. G. O., Washington, Apr. 21, 1902; Par. 15, S. O. 102, 
Hdqrs. of the Army, A. G. O., Washington, Apr. 30, 1902; S. O. 2, W. D., A. G. O., 
Washington, June 14, 1902; Par. 16, S. O. 302, Hdqrs. of the Army, A. G. O., Wash- 
ington, Dec. 26, 1902; Par. 5, S. O. 37, W. D., A. G. O., Washington, Feb. 14, 1905; 
Par. 1, S. O. 169, W. D., Washington, July 19, 1906; Par. 5, S. O. 30, W. D., A. G. O., 
Washington, Feb. 5, 1908; Par. 9, S. O. 55, W. D., A. G. O., Washington, Mar. 6, 1908; 
Par. 6, S. O. 90, W. D., A. G. O., Washington, Apr. 16, 1908; Par. 9, S. 0. 199, W. D., 
A. G. O., Washington, Aug. 26, 1908; Par. 18, S. O. 204, W. D., A. G. O., Washing- 
ton, Sept. 1, 1908; Par. 38, S. O. 141, W. D., A. G. O., Washington, June 19, 1909; 
Par. 5, S. 0. 107, W. D., A. G. O., Washington, Maj^ 8, 1911; Par. 11, S. O. 236, W. D., 
A. G. O., Washington, Oct. 9, 1911. His authority in this particular has been in 
substance aflSrmed by the Judiciary Committee of the Senate, in Report No. 868, 
dated Mar. 3, 1879, 45th Cong., 3d sess. See Swain v. U. S., 28 Ct. Cls., 173, and 165 
U. S., 559. 



492 DisciPLiisrE III B 2 a. 

here is not a judicial but an Executive act, and, like any other Execu- 
tive order, is legal if made through the head of the executive depart- 
ment to the province of which it pertains. R. 9, Jj-J/., May, 1864; 
56, 465, Aug., 1888; P. 1^5, 119, Jan. 17, 1891; 64, 169, Mar., 1894. 

Ill B 2 a. Section 1230 R. S., which provides for the trial by 
court-martial, upon appUcation, of officers who have been dismissed 
by order of the President, does not indicate within what period after 
dismissal the apphcation for trial shall be made. Held, that only 
those appHcations will be considered which are made within a rea- 
sonable time.i R. 16, 170, May, 1865; 42, 446, Dec, 1879; C. 4954, 
Jan. 20 and Feb. 4, 1899. 

Ill B 2 b. Held, that a request for trial by court-martial under 
section 1230 R. S. by a volunteer officer who had been dismissed by 
order can not be entertained after the Volunteer Army has been mus- 
tered out, as with the muster out of the Volunteer Army every officer 
and soldier of the sahae becomes a civilian, and laws which relate 
alone to people in the Army are no longer applicable to such officers 
and enlisted men, as they have become civifians. C. 4^54, Jan. 20 
and Feb. 4, 1899. 

Ill C 1 a. The officers of the branches of the service (specified in 
par. 189, A. R. 1910) are subject to be detailed upon court-martial 
duty only by orders emanating from the War Department. An 
officer of the Subsistence Department, assigned to duty at a general 
"depot of supply," was ordered to "report, on his arrival, by letter 
to the department commander. " Held, that this was not an order to 
report for duty and did not except him from the application of the 
regulation or place him, for court-martial service or otherwise, under 
the command of such commander, but enjoined merely a formal 
announcement of his arrival and entering upon his duties properly 
called for by considerations of courtesy and deference toward his 
military superior. P. 48, 255, July, 1891. 

Ill C 1 b. To detail as a court-martial the same officers as those 
already constituting a court-martial, without dissolving the court 
first convened, though a proceeding for which there are precedents, 
is one which should not be resorted to where, without material em- 
barrassment to the service, it can be avoided. And this view is 
appficable, though with less force, to the case of a single officer pro- 
posed to be detailed upon two distinct military coiu-ts at the same 
time; such a detail should not be made unless, on account of the 
scarcity of officers available for such duty, it can not well be avoided. 
R. 7, 134, Feb., 1864; 19, 495, Mar., 1866. 

Ill C 1 c. Held that Regulars may be tried by a court-martial upon 
which Volunteer officers sit as members. C. 13649, Nov. 11, 1902; 
11050, Dec. 8, 1902; 15161, Aug. 27, 1903; 15235, Sept. 11, 1903. 

Ill 1 d. Only officers can be detailed as members of courts- 
martial. R. 42, 311, May 29, 1879. Although officers on the active 
list are eligible for such duty, chaplains are not usually detailed. 
R. 36, 451, May 8, 1875; 41, 306, July 6, 1878. Civilians such as 
"Acting assistant surgeons" are not eligible. R. 22, 542, Dec, 1866. 
Officers who are biased or interested in the case should not be detailed. 
R. 39, 240, Oct. 22, 1877. 

' See Newton v. United States, 18 Ct. Cla., 435, and Armstrong v. United States, 
26 id., 387. 



DISCIPLINE III c 1 e. 493 

III C 1 e. Held that the convening authority is the sole judge of 
whether or not it is possible to constitute a court of members all 
superior in rank to the accused, and that his decision as indicated by 
the convening order is conclusive upon the court as to that matter. 
R. 3, 82, June, 1863; 56, 604, Sept., 1888; C. 10910, Aug. 17. 1901; 
24079, Oct. 12, 1908. 

Ill C 1 f . Held that either a Medical Reserve Corps officer, when 
lawfully on active duty in the service of the United States, or a 
dental surgeon commissioned as such, is legally eligible for detail as a 
member of a general court-martial or as a trial officer of a summary 
court. C. 23135, Nov. 27, 1911. Field, however, that in view of 
the fact that the sick may at any time require the attention of a 
doctor, that a medical officer should not be detailed to court-martial 
duty when it can be avoided. R. 22, 536, Dec, 1866; 23, 522, 
June, 1867; C. 13150, Aug. 19, 1902; 14583, June 28, 1903; 16920, 
Sept. 22, 1904. 

Ill C 2 a. Any commissioned officer may legally be appointed judge 
advocate of a court-martial. Thus a surgeon, assistant surgeon, or 
a chaplain is legally eligible to be so detailed. R. 9, 377, July, 1864; 
C. 19070, Jan. 18, 1906^ 

III C 2 b. WliUe a civilian may legally be appointed, or rather 
employed, as judge advocate of a court martial, such an employment 
has, for the past 50 years, been of the rarest occurrence in the military 
service.^ Civilian judge advocates have been much more frequently 
employed for naval than for military courts-martial.^ R. 20, 507, 
Mar., 1866. 

Ill C 2 c (1). An officer can not in general fitly or becomingly act 
as judge advocate in a case in which he is personally interested as 
accuser or prosecutor. P. 39, 35, Feb., 1890. Where the judge 
advocate had prepared the charges and was the accuser in the case, 
and moreover entertained a strong personal prejudice or hostility 
against the accused, held that he was ill-chosen to act as judge 
advocate, especially in the capacities of prosecuting official and 
adviser to the court. R. 49, 613, Dec, 1885. One who, without 
personal prejudice against the accused or interest in his conviction, 
has signed the charges, may, not improperly, act as judge advocate in 
the case. P. 63, 24O, Jan', 1894. 

Ill C 2 c (2). It is desirable to detail as judge advocate, if prac- 
ticable, an officer who has no considerable prejudice against the party 
to be tried, or any decided personal interest in his case. Thus the 
selection as judge advocate of an officer who was not only a material 
witness for the prosecution but would be promoted in case the 
accused, an officer of his regiment of a higher grade, were dismissed 
by the court, remarked upon as an unfortunate one.^ R. 21, 177, 
Jan., 1866; 31, 361, May, 1871. 

1 The last occasions of such employment are believed to have been those of the trial 
of the persons charged with complicity in the assassination of President Lincoln and 
the trial of Maj. Haddock, Prov. Mar. Dept. (see G. C. M. O. 356 and 565, War Dept., 
1865), upon which Hon. J. A. Bingham and Hon. Roscoe Conkling were respectively 
employed as judge advocates. 

2 In view of the provisions of sec. 17 of the act of June 22, 1870 (Sec. 189, R. 
S., transferring to the Department of Justice the authority to employ counsel for 
the executive departments, neither the Secretary of War nor the Secretary of the 
Navy is now authorized to retain a civilian lawyer to act as judge advocate of a court- 
martial. 13 Op. Atty. Gen. 514; 14 id. 13. (See Discipline IV L 1.) 

» See G. C. M. O. 5, War Dept., 1871; do. 41, id., 1875. 



494 DISCIPLINE III C 2 C (s). 

Ill C 2 c (3). While a judge advocate may be relieved pending a 
trial and a new one appointed, it would not be proper to make such 
a change after the conclusion of a trial, simply for the purpose of 
having the record authenticated.^ C. 5230, Oct., 1898; 17038, Oct. 18, 
1904. 

Ill C 3. HeM, that the appointment of a court-martial can not be 
legally delegated to a staff officer as a routine duty. C. 14.99, July 
17, 1895. 

Ill D. It may be said to be a principle of military law that a court- 
martial is to be left independent as to matters legally or properly 
within its own discretion. Such a court, however, may not assume 
authority over a subject belonging to the province of the officer by 
whom it has been convened. Thus, while it may decline to proceed 
with the trial of a case manifestly not within its jurisdiction, it can 
not properly refuse so to proceed on the ground that it is not empow- 
ered adequately to punish the offender upon conviction; or that offi- 
cers junior to the accused have been placed upon the detail; or that — 
the detail being less than 13 — a greater number might have been 
put upon the court without injury to the service; or that the accused 
has not been placed in arrest. A court declining to go on with a trial 
upon any such ground may be peremptorily ordered by the con- 
vening authority to proceed: if it still refuses, the preferable course 
will ordinarily be to dissolve it in general orders (adding, if deemed 
desirable, an expression of censure on account of its contumacy), 
and to convene, for the trial, a court composed entirely of new mem- 
bers. R. 21, 177, Jan., 1866; 25, 578, May, 1868; 28, 57, Aug., 1868. 

Ill El. It is the established practice before courts-martial and 
military commissions to examine into as many accusations against 
the individual on trial, without regard to their connection with each 
other or their identity in respect to date or place, as it may be deemed 
proper and advisable by the prosecuting authority to adduce. The 
charges against such a prisoner may be in number unlimited and as 
various in character as the jurisdiction of the tribunal will permit. 
R. 14, 40, Jan., 1865. They should, if practicable, be consolidated and 
one trial had upon the whole. R. 30,266, Apr., 1870. 

Ill E 2 a. A commander, in restoring a deserter to duty without 
trial according to the Army Regulations, is not authorized to require 
him to submit to a punishment, as a condition to his being so restored, 
or otherwise. R. 16, 83, May, 1865. 

Ill E 2 b. In a case where, because of previous convictions, the 
punishment may be dishonorable discharge,^ the department com- 
mander may properly require the charges to be brought to trial before 
a general court-martial, notwithstanding that, if the alternative 

* Army Regulations provide that "Whenever, by reason of the death or disabihty 
of the judge advocate occurring after the court has decided on the sentence, the record 
can not be authenticated by his signature, it must show that it has been formally 
approved by the court and must be authenticated by the signature of the president. ' ' 

^ "Whenever by any of the Articles of War, * * * the punishment on conyic- 
"tion of any military offense is left to the discretion of the court-martial, the punish- 
ment therefor shall not in time of peace be in excess of a limit which the President 
may prescribe." Act of Sept. 27, 1890. 

Under this Executive orders prescribing maximum punishments have been issued. 
See General Orders 21 A. G. O., 1891; do. IG of 1895; do. 16 of 1898; do. 88 of 1900; 
do. 42 of 1901. 



DISCIPLINE III E 3. 495 

punishment of dishonorable discharge be not resorted to, the punish- 
ment would be within the power of an inferior court. P. 60, 378, 
July, 1893. 

Ill E 3. The convening authority should consider each case care- 
fully and be satisfied that its prosecution is for the best interests of 
the Government before he refers the charges to a court. Held that 
no form is laid down for such consideration, and he may refer the 
charges to his inspector general or to any other officer, but he is not 
required to do so. C. 19854, June 29, 1906. 

Ill E 3 a. Held that a soldier may legally be tried at the same time 
for fraudulent enlistment and for desertion therefrom. C. 11196, 
Sept. 13, 1901. 

Ill E 3 b. As desertion and joining the enemy and taking service 
with him are two distinct offenses, held, that desertion would ordi- 
narily be tried bj[ a general court-martial as a violation of the Articles 
of War, while joining the enemy would be tried by a military com- 
mission as a violation of the laws of war. C. 11811, Dec. 26, 1901. 

Ill E 4. Held that in accordance with a principle of comity as 
between the civil and military tribunals the jurisdiction wliich first 
attaches in a particular case should be carried to its termination, and 
that the request of the civil authorities for the surrender of the 
prisoner may be denied if military jurisdiction has already attached. 
C. 11589, Nov. 13, 1901; 17667, Mar. 18, 1905; 19466, Mar. 31, 1906. 

Ill E 5 a. Held that an officer could not, by consenting to being 
placed under a "conservator" as a habitual drunkard, in the form 
prescribed by the local law, withdraw himself from the military juris- 
diction; but that he remained amenable to trial and punishment 
for offenses committed prior to such proceeding and within the period 
of limitation. So recommended in the particular case that the officer 
be brought to trial for certain offenses (duplication of pay accounts) 
committed prior to such proceeding. P. 63, 358, Feb., 1894. 

Ill E 5 b. An officer was examined to determine liis fitness for 
promotion. A question arose, administratively, as to his moral 
qualifications. Held, that as the instrumentality of the general court- 
martial is placed at the disposal of the proper convening authority 
for the purpose of dealing with all cases of moral obliquity, such cases 
should be tried by court-martial, the agency provided by law for the 
investigation and punishment of offenses in violation of the Articles 
of War. C. 24036, Nov. 2, 1908. 

Ill E 6. A prosecution before a court-martial proceeds in the name 
and by the authority of the Government. The United States, there- 
fore, through the Secretary of War, or the military commander who 
has convened the court, may require or authorize the judge advocate 
to enter a nolle prosequi in a case on trial (or, less technically, withdraw 
or discontinue the prosecution), either as to all the charges where there 
are several, or as to any particular charge or specification. But the 
judge advocate can not exercise this authority at his own discretion, 
nor can the court direct it to be exercised, n. 9, 488 and 533, Aug., 
1864; 54, 458, Nov., 1887. 

Ill E 7. In cases where charges preferred against an officer are 
apparently susceptible of a reasonable explanation, it is not unusual, 
especially where the charges are preferred by an inferior against a 
superior to afford the officer charged an opportunity to make explana- 



496 DISCIPLINE III F. 

tion before it be determined whether to bring him to trial. R. 20, 
12, Oct., 1865; C. 22120, Sept. 21, 1907. 

III F. Strictly, communications from the convening authority to 
the court as such (and vice versa) should be made to (and by) the 
president as its organ, unless in the latter case the court directs the 
judge advocate to represent it; communications, however, relating to 
the conduct of the prosecution should be made to (and by) the judge 
advocate. R. 29, 336, Oct., 1869; O. 17038, Oct. 18, 190 J^. 

IIlGl. An order convening a general court martial should 
properly be so headed and authenticated, or so authenticated, as to 
show that it was issued by an officer authorized by the statute law — 
the seventy-second or seventy-third article of war— to create such a 
tribunal. Thus held that such an order (issued in time of war) 
signed by an officer describing himself as commanding a ''post" or 
''district" was 'prima facie invalid and inoperative, though capable 
of being shown to be valid by proof that the command was of such 
dimensions and so situated as practically to constitute a separate 
army division, or separate brigade.^ R. 11, 162, 170, 176, 214, ^ov. 
and Dec, 1864; 26, 610, Apr., 1868. 

IV A, A separate judge-advocate should be appointed for each 
general court martial convened by a department, or other competent 
commander. The same officer may indeed be selected to perform the 
duties of judge advocate as often as may be deemed desirable by the 
commander, but he should be detailed anew for every court-martial 
on which he acts. To appoint in a general order a particular officer 
to act as judge advocate for all the courts to be held in the same com- 
mand would be quite irregular and without the sanction of precedent. 
R. 2, 64, Mar., 1863; 16, 429, Aug., 1865. 

IV B. A judge advocate is not authorized to entertain charges 
in the first instance; he can properly act upon charges, i. e., make 
service of the same, prepare the case for trial, etc., only when the 
charges are transmitted to him for the purpose by the officer who has 
convened the court or detailed him as judge advocate. R. 4^, ^02, 
Mar., 1879. 

IV B 1. The judge advocate is not unfrequently directed to pre- 
pare or reframe charges; but where charges, already formally pre- 
ferred, are transmitted to him for prosecution, he should not assume 
to modify them in material particulars in the absence of authority from 
the convening officer. While he may ordinarily correct obvious mis- 
takes of form or slight errors in names, dates, amounts, etc., he 
can not without sucli authority make suhstamtial amendments in 
the allegations, or — least of all — reject or withdraw a charge or 
specification, or enter a nolle prosequi as to the same, or substitute 
a new and distinct charge for one transmitted to him for trial by the 

' The order should properly indicate for what trial or class of trials the court is 
convened, or its terms should be so general in this particular as to authorize the court 
to entertain any case that may be referred to it for trial. A court, restricted by the 
order convening it to the trial of a special case or class of cases, would not be empow- 
ered (in the absence of further orders) to take cognizance of a case not within such 
designation. See G. O. 106, Army of the Potomac, 1862, where the proceedings of a 
court martial in a case of a private soldier were disapproved as without jurisdiction, 
because the convening order had authorized the court to try the cases only of euch 
officers as might be brought before it. 



DISCIPLINE IV B 2. , 497 

proper superior.^ R. 2, 60, Mar., 1863; 21, 56, Nov., 1865; P. 20, 
378, Nov., 1887. 

IV B 2. The power to appoint the reporter, under section 1203, 
R. S.,' is vested exclusively in the trial judge advocate and can not 
be exercised by the court. The employment, however, of a steno- 
graphic reporter should be resorted to only in an important case. 
R. 2, 515, June, 1863; 11, 361, Jan., 1865; 34,232, Apr., 1873; 0. 15424, 
Oct. 24, 1903. 

IV B 2 a. By circular 22, Adjutant General's Office of 1898, the em- 
ployment of enHsted men as reporters for courts-martial was author- 
ized "without extra expense to the United States." Under Army 
Regulations 960 (1064 of 1901) ''no person in the military or civil 
service can lawfully receive extra compensation for clerical duties 
performed for a military court," and section 6 of the act of April 
26, 1898 (30 Stat. 365), provides "that in war time no additional 
increased compensation [i. e., additional to the 20 per cent increase] 
shall be allowed to soldiers performing what is known as extra or 
special duty." Held that under the regulation and statute referred 
to no extra pay can be allowed an enlisted man for services as reporter. 
C. 5434, Dec, 1898; 7334, Nov., 1899. 

IV B 3 a. A judge advocate is authorized to subpoena witnesses 
only for testifying in court; he can not summon a witness to appear 
before himself for preliminary examination. For this purpose he 
must procure an order to be issued by the proper commander. R. 52, 
508, Sept., 1887. 

IV B 3 a (1). The judge advocate, in forwarding the interrogatories 
for a deposition, should transmit with them a subpcena (in duplicate) 
requiring the witness to appear at a stated place and date before a 
certain person who is to take the deposition. Particulars not ascer- 
tained may be left blank to be supplied by the officer or person by 
whom the subpoena is served. When the deposition has been duly 
taken and returned, the judge advocate should transmit to the 
witness (or to some officer, etc., for him) the usual certificate of 
attendance (accompanied by a copy of the convening order), the 
duration of the attendance to be ascertained from the deposition. 
R. 55, 384, Mar., 1888. 

IV B 3 b. A judge advocate has no authority to employ a civil 
official or private civilian to serve subpoenas, if by so doing the 
United States will be subjected to a claim for compensation. P. 
32, 365, May, 1889; 51, 407, Jan., 1892. 

1 See G. O. 64, Dept. of the Cumberland, 1867; do. 98, id., 1868; do. 85, Dept. of 
the South, 1874; G. C. M. O. 36, 42, Dept. of the Platte, 1877; do. 13, id., 1878; do. 
48, Mil. Div. of Pacific & Dept. of Cal., 1880. 

This paragraph sets forth the established practice. 

A competent judge advocate will properly be left by the court to introduce the 
testimony in the form and order deemed by him to be the most advantageous, and 
generally to bring on cases for trial and conduct their prosecution according to his 
own judgment. Compare G. C. M. 0. 97, Dept. of Dakota, 1878; do. 38, Dept. of 
Texas, 1878; and — as to the civil practice — United States v. Burr, 1 Burr's Trial, 85, 
469; Lynch v. Benton, 3 Rob., 105; Davany v. Koon, 45 Miss., 71. 

^ This section provides: "The judge advocate of a military court shall have power 
to appoint a reporter, who shall record the proceedings of, and testimony taken before, 
such court, and may set down the same, in the first instance, in short hand. The 
reporter shall, before entering upon his duty, be sworn, or affirmed, faithfully to per- 
form the same." 

93673°— 17 32 



498 , DISCIPLINE IV B 3 C. 

IV B 3 c. Held, that a judge advocate may certify as necessary for 
"Expenses of courts-martiar' the necessary expense incident to 
locating a material witness, who had been duly summoned before 
the court and who had disobeyed the summons and left his former 
place of abode. C. U704, May 23, 1903. 

IV B 3 d (1). Held, that if in the trial of an officer the accused raises 
the question of insanity as a defense, the judge advocate may, with 
the approval of superior authority, employ on behalf of the Govern- 
ment an expert in mental diseases with a view to placing him on the 
stand as a witness. Held, further, that the necessary expense is a 
proper charge against the appropriation for expenses of courts- 
martial. C. lJf.760, June I^, 1903. 

IV B 4. Section 1202, R. S., authorizes only judge advocates of 
courts-martial to issue process to compel the attendance of witnesses. 
The court itself — general or inferior — ^has no such power. R. 50, 632, 
Aug., 1886; P. 51,^ 468, Jan., 1892. But the judge advocate is 
authorized only to initiate the process of attachment. The statute 
does not specify by whom it shall be executed, and the judge advo- 
cate is not authorized to command any officer or person to serve it; 
nor has the court any such power.^ R. 50, 632, supra; C. 19^73, 
Nov. 24, 1905. 

IV B 4 a. A judge advocate, having attached a civilian witness 
who was brought to the place of the court, detained him one hour 
in the guardhouse before bringing him before the court. For this he 
was indicted (for false imprisonement) in a United States district 
court in Texas. Held, that his action was warranted under section 
1202, R. S., and advised that the Attorney General be requested to 
cause the prosecution to be discontinued. R. 50, 191, Apr., 1886. 

IV B 5. A judge advocate of a court-martial has no authority to 
place in arrest an officer or soldier about to be tried by the court, or 
to compel the attendance of the accused before the court by requiring 
a noncommissioned officer to bring him, or otherwise : These are duties 
which devolve upon the convening authority or upon the post com- 
mander or other proper officer in whose custody or command the 
accused is at the time. R. 28, 531, Apr., 1869. 

IV C 1. It is strictly the proper practice for a judge advocate not to 
give his opinion upon a point of law arising upon a military trial, 
unless the same may be required by the court. This practice, how- 
ever, is often departed from, and the opinions of judge advocates, 
suitably tendered, are in general received and entertained by the court 
without objection, whether or not formally called for. But where the 
court does object to the giving of an opinion by the judge advocate, 
he is not authorized to attempt to give it, and, of course, not author- 
ized to enter it upon the record. Whether the fact — that the opinion 
was offered and objected to by the court — shall be entered upon the 
record, is a matter for the court alone to decide. It is, however, cer- 
tainly the better practice that all the proceedings, even those that are 
irregular, which transpire in connection with the trial, should be set 
out in the record for the inspection of the reviewing authority. R. 
26, 251, Dec., 1867. 

IV C 2 a. The duty of the judge advocate toward the accused should 
not be regarded as confined to the limited province of "counsel for 

1 See par. 967, Army Regulations (1910). 



DISCIPLINE IV c 2 a (i). 499 

the prisoner" as the same is defined in the ninetieth article of war. 
Where the accused is ignorant and inexperienced and without coun- 
sel — especially where he is an enhsted man — the judge advocate 
should take care that he does not suffer upon the trial from any igno- 
rance or misconception of his legal rights, and has full opportunity to 
interpose such plea and make such defense as may best bring out the 
facts, the merits, or the extenuating circumstances of Ms case. B. 5, 
677,^ Dec, 1863; 55, 182, Dec, 1887. The judge advocate should 
advise the accused, especially when ignorant and unassisted by coun- 
sel, of his rights in defense — -particularly of his right, if it exists in the 
case, to plead the statute of limitation (P. 21, 156, Dec, 1887), and of 
his right to testify in his own behalf.^ A failure to do so, however, 
will not affect the legal validity of the proceedings; though, if it 
appear that the accused was actually ignorant of these rights, the 
omission may be ground for a mitigation of sentence. R. 55, 182, supra; 
C. 1885, Nov. 29, 1895; 16845, Oct. 3, 1904; 16974, Oct. 4, 1904; 
18764, Feb. 8, 1907. 

IV C 2 a (1) . For the judge advocate to coimsel the accused, when a 
soldier or inferior in rank, to plead guilty, must in general be unbefit- 
ting and inadvisable. But where such plea is voluntarily and intel- 
ligently made, the judge advocate should properly advise the accused 
of his right to offer evidence in explanation or extenuation of his 
offense, and, if any such evidence exists, should assist him in securing 
it. And where no such evidence is attainable in the case, the judge 
advocate should still see that the accused has an opportunity to 
present a ''statement," written or verbal, to the court, if he has any 
desire to do so. R. 5, 577, Dec, 1863. 

IV C 3. It is one of the duties of the judge advocate to prepare the 
"complete and accurate record" which "every court-martial" is 
requu'ed by the Army Regulations to "keep." He should, if prac- 
ticable, complete the record of each day's proceedings in time to be 
submitted to the court at the next day or next session for approval 
or correction. The record is the record of the court, and the judge 
advocate is subject to the direction of the court in preparing it. R. 21, 
679, Nov., 1866. 

IV C 3 a. Should the judge advocate be required to give evidence 
as a witness, the clerk or reporter of the court may go on to record his 
testimony while on the stand ; or, if there be no clerk or reporter, he 
may record his own testimony as that of any other witness. R. 21, 
177, Jan., 1866; 0. 10808, July 8, 1901. 

IV C 3 b (1). Wliere there have been two or more judge advocates 
successively detailed in the course of a trial, the one who is acting at 
the close is the one (and the only one) required to authenticate the 
proceedings by his signature. R. 2, 148, Apr., 1863. 

IV C 3 b (2) . The method of holding together the leaves of a court- 
martial record by means of a clip is not of sufficiently permanent nature 
to guarantee the integrity of the papers which make up the record. 
The method of binding is not prescribed, but it should be such a one 
as will securely fasten together all the leaves which compose the 
record. C. 18764-A, Sept. 26, 1908. 

IV C 3 b (3) . The record will conveniently and properly be indorsed 
on the outside, or cover, so that the name of the accused, and the 

1 See G. 0. 75, A. G. O., 1887. 



500 DISCIPLINE IV 3 b (4). 

court by which he was tried, with the time 'and place of trial, etc., 
will be apparent without opening and examining the proceedings. 
R. 31, 2U, Mar. 187 L 

IV C 3 b (4). That there is no legal objection to printing the record, 
or any part of it (such as the orders, charges, and specifications, where 
numerous), provided of course the signatures of the president and 
judge advocate are written by them in person. B. 13, 384, Feb-, 1865. 

IV C 4 a. Tlie statute does not indicate by whom the reporter shall 
be sworn. . In practice he is sworn by the judge advocate; a form of 
oath being prescribed in the Manual for Courts-Martial. If the same 
party is employed as a reporter for more than one case, he should, 
properly, be sworn anew in each case.^ C. 294, Sept., 1894; 4^4^, 
4647, July 1898; 5169, Oct., 1898. 

IV D, One of the functions of the judge advocate of a court-martial 
is the execution of its orders. If a court-martial adjourns subject to 
the call of the presiding officer, the judge advocate is carrying out the 
orders of the court when notifying members of the time designated by 
the presiding officer for reassembling. R. 68, 670, Apr., 1885. 

IV E. The general presumption of law, made in favor of all public 
officers, in the absence of affirmative evidence to the contrary that 
they duly fulfill their functions, applies to the judge advocate. R. 56, 
182, Dec, 1887. 

IV F. An absence of the judge advocate from the court during the 
trial does not per se affect the validity of the proceedings, but is of 
course to be avoided if possible. When the judge advocate is obliged 
to temporarily absent himself, the court should in general suspend the 
proceedings for the time; or, if his absence is to be prolonged, should 
adjourn for a certain period. R. 21, 177, Jan., 1866. No one can 
assume his duties in his absence, except that the record of a meeting 
and adjournment in consequence of such absence would be made as the 
court might direct. C. 2059, Feb., 1896; 17038, Sept. 10, 1909. 

IV G. A judge advocate of a court-martial may be detailed to per- 
form other duty, as that of officer of the day or member of a board of 
survey (now surveying officer), if such duty will not interfere with 
his duties as judge advocate. But in general of course no duties, in 
addition to those incidental to his function as judge advocate, should 
be imposed upon him pending an important trial. R. 29, 273, Sept., 
1869. 

IV H. An officer serving as judge advocate on the staff oi a depart- 
ment or Army commander has as such no authority to act as judge 
advocate of a court-martial convened by such commander. If it is 
desired that he should act as judge advocate of such a court, he should 
be specially detailed for the purpose. R. 5, I40, Oct., 1863. 

IV I 1. There is no special provision of law for compensating 
attorneys retained as counsel to assist judge advocates. Such coun- 
sel should not be retained except in important and complicated cases; 
and the authority of the Secretary of War for their employment 
should first be sought and obtained. The claims of such counsel, 
approved by the judge advocate, should be presented to the Secre- 

* The reporter should be excluded from the court during closed session and not 
permitted to record the findings or sentence. 



DISCIPLINE TV I 2. 501 

tary of War, to be paid, if allowed, out of the contingent fund.* R. 5, 
446, Dec, 1863. 

IV I 2. The fact of the selection of a certain officer as the judge 
advocate of a military court is evidence that such officer is consid- 
ered qualified to conduct the prosecution of cases before such court; 
and the employment of civil counsel to aid him in any case can be 
authorized only by the Secretary of War, or some proper commander. 
For a judge advocate to employ counsel without such authority, or to 
contract with a counsel to pay him for his services a certain amount 
fixed between them without the sanction of the proper superior, would 
be an irregular and unwarrantable proceeding, and no such contract 
would be binding upon the Government. If paid at all he should be 
paid only such amount as, upon a review of all his services and inspec- 
tion of the record itself, shall be deemed reasonable and just. R. 22, 
345, Aug., 1866. 

IV K. Other than the judge advocate, who by the ninetieth article 
of war is "required to prosecute in the name of the United States," 
our military law and practice recognize no official prosecutor. The 
party who is in fact the accuser or the prosecuting witness is, in 
important cases, not unfrequently permitted by the court to remain 
in the court room and advise with the judge advocate during the trial, 
if the latter requests it; and in some cases he has been allowed to be 
accompanied by his own counsel. If such a party is to testify, he 
should ordinarily be the first witness examined ; this course, however, 
is not invariable. R. 2, 1, June, 1863; 29, 34, June, 1869. 

IV L. The judge advocate in our practice is entitled to the closing 
argument or address to the court, and he may present an address 
although the accused waives his right to present any; the function of 
the judge advocate at this stage of the proceedings not being con- 
fined merety to a replying to the accused. The court is not authorized 
to deny to the judge advocate this right to be heard. R. 11, 377, 
Jan., 1865: 32, 499, Apr., 1872; 49, 613, Dec, 1885. The judge 
advocate in his address is not authorized to read to the court evidence 
or written statements not introduced upon the trial and which the 
accused has had no opportunity to controvert or comment upon. 
R. 22, 238, June, 1866. 

IV M, Where the court was convened by a military officer — as, in 
a case of a general court, the general of the Army or a department or 
Army commander — it is the duty of the judge advocate, upon the 
completion of the record, to transmit the same to such officer (or his 
successor in command) for the proper action^ Where the court was 
convened b}'- the President, it is the duty of the judge advocate to 
transmit the completed proceedings directly to the Judge Advocate 

' In cases of exceptional difficulty and public importance civil counsel were formerly 
not unfrequently retained to assist the judge advocate, as indicated in the text. Since 
the creation, however, of the office of Judge Advocate General of the Army, and of the 
corps of Judge Advocates, by the act of July 17, 1862, such instances have been of the 
rarest occurrence. Under the existing law (Sec. 189, R. S.), indeed, counsel could 
be employed (at the public expense) for this purpose only through the Department of 
Justice upon the request or recommendation of the Secretary of War. See Discipline 



502 DISCIPLINE IV N. 



1 



General,^ in order that he may exercise the revisory function reposed 
in him by section 1199, R. S.^ R. 42, 457, Dec, 1879. 

IV N. A judge advocate is not subject to challenge. R. 35, 618, 
Oct., 1874. 

IV O. Under the custom of the service the judge advocate may 
also challenge for cause. C. 2059, Feb., 1896. 

V A. Except by the authority of express statute, an accused can 
never be entitled to be tried by court martial. Where he is amenable 
to trial, the Government may cause him to be tried or may waive a 
trial, at discretion. R. 34, 413, Aug., 1873; P. 65, 259, June, 1894. 

V B. The principle of the fifth amendment to the Constitution, 
but not the amendment itself, applies to courts martial trials as a 
part of our common law military. As section 860, R. S., does not 
apply to courts martial, it does not set aside the general principle 
which with courts martial takes the place of the constitutional pro- 
vision, but whether it applies or not, an accused on trial before a court 
martial can not, when testifying as a witness in his own behalf, be 
compelled by it to criminate himself as to an offense in respect to 
which he has not testified. G. 1495, July, 1895. 

V B 1. When an accused person denies that he is the person 
described in the charges, held that evidence of identity may be intro- 
duced which was secured by surgeons in the Army at the time of the 
physical examination required by the Regulations and recorded in 
the regular records, or which was secured by surgeons of the Army 
when the accused was a patient under the charge of such surgeons.^ 
0. 24624, Mar. 13, 1909. 

V C. The fact that the accused is an officer of high rank should 
not be regarded as constituting a ground for allowing him any special 
right or privilege in his defense before a court martial. The adminis- 
tration of justice by a military as by a civil court must be strictly 
impartial, or it ceases to be pure. All persons on trial by the one 
species of tribunal as by the other are deemed to be equal before the 
law. R.ll, 204, Dec, I864. 

V D 1. In order that he may not be embarrassed in making his 
defense, the accused party on trial before a court martial should be 
subjected to no restraint other than such as may be necessary to 
enforce his presence or prevent disorderly conduct on his part. 
Except, therefore, in an extreme case, as where the accused being 

1 See G. 0. 72, War Dept., 1873; do. 39, Hdqrs. of Army, 1877. 

2 It may here be noted that the one hundred and thirteenth article of war, the only 
statute relating to the forwarding, by judge advocates of the proceedings of general 
courts, is incomplete and not in harmony with the provisions of arts. 104 and 109. 
The practice on the subject is now regulated by paragraph 892, Army Regulations of 
1895 (932 of 1910), which requires that "proceedings of all courts and military com- 
missions appointed by the President " shall be sent direct to the Secretary of War. 

3 O'Brien v. Ind. L. R. A., Book 9, 1890, page 233; see also vol. 12, Cyc. of Law 
and Procedure, page 401; see also Wigmore on Evidence, sections 2250 to 2382. In 
the case of State v. Ah Chuey it was held that "Upon the trial, a question was raised 
as to the identity of the defendant. One witness testified that he knew the defendant, 
and knew that he had tattoo marks (a female head and bust) on his right forearm. 
The court thereupon compelled the defendant against his objection to exhibit his 
arm in such a manner as to show the marks to the jury. Held that this action of the 
court was not in violation of the clause in the State constitution which declares that 
no person shall be compelled 'in any criminal case to be a witness against himself,' " 
that it was not prejudicial to defendant and was not erroneous." (State v. Ah Chuey, 
aliaa Sam Good, 14 Nev., p. 79.) 



DISCIPLINE V D 2 a. 503 

charged with an aggravated and heinous offense, there is reasonable 
ground to beUeve that he will attempt to escape or to commit acts 
of violence, the keeping or placing of nons upon him while before the 
court will not be justified.^ Even in such a case it will be preferable 
to place an adequate guard over him. R. 31, 102, Dec, 1870; 32, 
274, 633, Jan. and May, 1872. 

V D 2 a. It is not a sufiicient defense to a charge of striking or 
using other violence against a soldier, by an officer, that the soldier 
was himself violent and insubordinate, unless it clearly appears that 
the force employed by the officer was resorted to in self defense, or 
that the soldier could not have been repressed or restrained by the 
usual and legitimate methods and instrumentalities of discipline. 
R. 53, 193, Oct., 1886; P. 43, 52, Sept., 1890; 60, 257, June, 1893. 

V D 2 b. An officer having had a verbal altercation with another 
officer (of superior rank) in which the latter had (as he, the former, 
represented) used invidious language toward him and threatened his 
hfe, addressed to the latter, on the following day, a highly abusive 
and insulting communication in writing. On his being brought to 
trial for this offense, the court-martial sentenced him only to be repri- 
manded — on account, as they expressed it, of the "great provocation" 
received by him. Held that the proper redress of the accused in such 
a case was by complaint to the jjroper superior and the preferring of 
charges; that the course taken by him was unmilitary and unbe- 
coming, the language used by the other, however reprehensible, con- 
stituting no legal provocation and no defense to his act as charged. 
P. 65, 285, June, 1894. 

V D 2 c. Held that it was not a sufficient defense to a charge, under 
article 60 or article 61, of duplication of a pay account, that the 
accused had an understanding with the first assignee that he was 
not to present the account assigned to him till the accused should 
have an opportunity to withdraw it and substitute other security. 
The fact that an accused assigns a second account, while the first, 
without the knowledge of the second assignee, is still outstanding in 
the hands of the first assignee, completes the offense. P. 50, 45, 219, 
Oct. and Nov., 1891; C. 15373, Apr. 6, 1904. 

V D 3. After the accused has been arraigned upon certain charges, 
and has pleaded thereto, and the trial on the same has been entered 
upon, new and additional charges, which the accused has had no 
notice to defend, can not be introduced or the accused required to 
plead thereto. Such charges should be made the subject of a separate 
trial, upon which the accused may be enabled properly to exercise 
the right of challenge to the court, and effectively to plead and 
defend. R. 24, 513 and 577, May, 1867. 

V D 4. A failure, at the arraignment, to take notice of a variance 
between the form of a specification to which the accused is called 
upon to plead and such specification as it appeared in the copy of the 
charges served at his arrest, is a waiver of the objection, and the same 
can not be taken advantage of at a subsequent stage of the pro- 
ceedings. P. 64, 172, Mar., 1894. 

V D 5. Drunkenness caused by morphine or other drug (see thirty- 
eighth article) , prescribed by a medical officer of the Army or civil 

• Compare G. C. M. 0. 62, Dept. of the Missouri, 1877; do. 55, id., 1879; and— aa 
to the civil practice — Lee v. State, 51 Miss., 566; People v. Harrington, 42 Cal., 175. 



504 DISCIPLINE V D 6. 

physician, may constitute an excuse for a breach of discipline com- 
mitted by an officer or soldier, provided it quite clearly appears that 
this was the sole cause of the offense committed, the accused not being 
chargeable with negligence or fault in the case. R. 28, 390, Feb., 1869. 

V D 6. The order of a commanding officer will in general constitute 
a sufficient authority for acts regularly done by an inferior in compli- 
ance with the same. Wliere, however, the order of the superior is a 
palpably illegal order, the inferior can not justify under it; ^ and if 
brought to trial by court-martial, or sued in damages for an act done 
by him in obedience thereto, the order will be admissible only in 
extenuation of the offense.^ R. 25, 592, June, 1868. 

In the Fair case {In re Fair, 100 Fed, Rep., 149) the following lan- 
guage of the court in McCall v. McDowell (Federal Cases, No. 8673) is 
cited with approval: "Except in a plain case of excess of authority, 
where at ffi'st blush, it is apparent and palpable to the commonest 
understanding that the order is illegal, I can not but think that the 
law should excuse the military subordinate when acting in obedience 
to the orders of his commander. The first duty of a soldier is obe- 
dience, and without this there can be neither disciphne nor efficiency 
in the Army. If every subordinate officer and soldier were at liberty 
to question the legality of the orders of the commander, and obey 
them or not, as they may consider them valid or invalid, the camp 
would be turned into a debating school, where the precious moment 
for action would be wasted in wordy conflicts between the advocates 
of confficting opinions." Wliile this may be true as applied to 
criminal cases (although McCall v. McDowell was a civil case), it 
certainly is not correct in civil cases. See Bates v. Clark, 95 U. S. 
204, in which the Supreme Court held in a civil suit for damages as 
follows: "It is a sufficient answer to the plea, that the defendants 
were subordinate officers acting under orders of a superior, to say 
that whatever may be the rule in time of war and in the presence of 
actual hostilities, mihtary officers can no more protect themselves 
than civilians in time of peace by orders emanating from a source 
which is itself without authority." ^ C. 7500, June, 1900. 

V E. An objection that a charge is not signed should be taken at 
the arraignment — when the omission may be supplied by the judge 
advocate's affixing his signature. By pleadmg the general issue the 
accused waives the objection. P. 59, 258, May, 1893. 

V F. The prosecution is at liberty to charge an act under two or 
more forms, where it is doubtful under which it will more properly be 

1 See Harmony v. Mitchell, 1 Blatch., 549; Mitchell v. Harmony, 13 How., 115, 
Durant v. Hollins, 4 Blatch., 451; Holmes v. Sheridan, 1 Dillon, 357; McCall v. 
McDowell, Deady, 233, and 1 Ab. U. S. R., 212; Clay v. United States, Devereux (Ct. 
Cls.), 25; United States v. Carr, 1 Woods, 480; Bates v. Clark, 5 Otto, 204; Ford v. 
Surget, 7 Otto, 594; Skeen v. Monkeimer, 21 Ind., 1; Griffin v. Wilcox, id., 391; Riggs 
V. State, 3 Coldw., 851; State v. Sparks, 27 Texas, 632; Keighly v. Bell, 4 Fost. and 
Fin., 805; Dawkins v. Rokeby, id., 831. The law is the same although the order to 
the inferior may emanate directly from the President. See Eifort v. Bevins, 1 
Bush, 460. ^. „ ,„ 

2 State V. Sparks, supra; McCall -i;. McDowell, supra; Milligan v. Hovey, 3 Biseell, 13; 
Beckwith v. Bean, 8 Otto, 266. 

3 But that officers and soldiers of the United States who, in good faith without any 
criminal intent, but with an honest purpose to perform a supposed duty as soldiers 
under the law of the United States, act in obedience to an order, the illegality of 
which is not apparent and palpable to the dullest understanding, are not liable to 
prosecution under the criminal laws of a State, see further the case of Fair cited 
m the text. See also U. S. v. Clark, 31 Fed. Rep., 710. 



DISCIPLINE V G 1. 505 

brought by the testimony.' In the military practice the accused is 
not entitled to call upon the prosecution to "elect" under which 
charge it will proceed in such, or indeed in any, case. R. 33, 306, 
Aug. 1872. 

V G 1. An office;- or soldier put upon trial before a court-martial 
is not entitled as of right to have counsel present with him to assist 
him in his defense, but the privilege is one which is almost invariably 
conceded, 2 and where it is unreasonably refused, such refusal may 
constitute ground for the disapproval of the proceedings. R. 32, 519, 
Apr., 1872. A court-martial, however, is not required to delay an 
unreasonable time to enable an accused to provide himself with 
counsel. R. 30, 102, Feb., 1870; 0. 13892, Dec. 29, 1902. 

V G 2. An accused, prior to arraignment, even if in close arrest, 
should be allowed to have inter\dews with such counsel, military or 
civil, as he may have selected. R. 12, 4-4^, June, 1865; 21, lJf.1, 
Dec, 1865. So, his counsel should be permitted to have interviews 
with any accessible military person who may be a material witness 
for the accused, or whose knowledge of facts may be useful to 
the accused in preparing for trial. R. 19, 33, Oct., 1865; G. 13892, 
Dec. 29, 1902. 

V G 3. Section III, Circular 8, Adjutant General's Office, 1894, 
provides that "no officer directly responsible for the discipline of an 
organization or organizations under his command — as the command- 
ing officer of a post, band, company, battalion, squadron, or regi- 
ment — nor the trial officer of a summary court will be regarded as a 
'suitable' officer under the provisions of General Order 29, Adjutant 
General's Office, 1890, for this duty (counsel for defense before 
general court-martial) at the post where he is stationed." Held, that 
the section quoted was intended to declare the officers mentioned 
therein not suitable for the duty of covmsel, and that it should not 
be construed as conferring iipon them an exemption from such duty, 
which they could waive, u. 29, July, 1894. 

V G 4. By the use of the word counsel in General Order No. 29, 
Adjutant General's Office, 1890, without qualification, it was un- 
doubtedly intended that officers detailed as such should perform for 
an accused soldier all those duties which usually devolve upon counsel 
for defendants before civil courts of criminal jurisdiction, in so far 
as such duties are apposite to the procedure of military courts. It 
would be proper for an officer so detailed to employ all honorable 
means to acquit him, that is to invoke every defense which the law 
and facts justify, without regard to his own opinion as to the guilt 
or innocence of the accused. Military law does not any more than 
the ci\Tl assume to punish all wrongdoing, but only such as can be 
ascertained by the methods of justice which the law and the customs 

' "For the purpose of meeting the evidence as it may transpire." State v. Bell, 27 
Md., 675. 

2 See McNaughten, p. 178; Macomb (edition of 1809), p. 94; Winthrop, Mil. Law 
and Precedents, 241. 

In the case published in par. 4, S. O. 145, Dept. of the East, 1896, the Department 
Commander decided, as shown by the record, that "as there is no officer * * * 
available for detail as counsel, it is believed, considering each of the charges, that 
the judge advocate ol" the court should be able to guard the interests of the accused." 

Compare, on this subject, People v. Daniell, 6 Lansing, 44; People v. Van Allen, 
55 New York, 31. 



506 DISCIPLINE V G 5. 

of the service prescribe.^ P. 64, I64, Mar., 1894; 0. 609, Nov., 1894; 
15627, Dec. 7, 1903. 

V G 5. An application by an accused officer to be furnished, at 
the expense of the United States, with civil counsel to defend him 
on his trial by court-martial, remarked upon as unprecedented and 
not to be entertained. (Paragraphs 1012 and 1013) Army Regula- 
tions (1910) relate to no such a case. P. 50, 277, Nov., 1891. No 
authority exists for the payment by the United States of civil 
counsel employed by an officer or an enlisted man to defend him 
on his trial by court-martial. P. 32, 165, May, 1889; 45, 438, Feb., 
1891. 

V G 6. Held, that it is not the policy of the Government to incur 
expenses for defending officers before military courts from the conse- 
quences of their misconduct, and that counsel should look to the 
accused for reimbursement for any expenses incurred as counsel. 
G. 13470, Oct. 20, 1902. _ 

V H 1. In any case tried by court martial the accused may, if he 
thinks proper (and whether or not he has taken the stand as a wit- 
ness 2), present to the court a statement or address either verbal or in 
writing. Such statement is not evidence: ^ as a personal defense or 
argument, however, it may and properly should be taken into con- 
sideration by the court, tt. 20, 432, Feb., 1866. 

V H 2. Wliile the statement is not evidence, and the accused is not 
in general to be held bound by the argumentative declarations con- 
tained in the same, yet, if he clearly and unequivocally admits therein 
facts material to the prosecution, such may properly be viewed by 
the court and reviewing officer as practically facts in the case.* R. 27, 
407, Dec, 1868. So, where the accused, in his statement, fully 
admits that certain facts existed substantially as proved, he may be 
regarded as waiving objection to any irregularity in the form of the 
proof of the same. R. 27, 385, Nov.,^ 1868. 

V H 3. A large freedom of expression in his statement to the court 
is allowable to an accused, especially in his comments upon the evi- 
dence. So, an accused may be permitted to reflect within reasonable 
limits upon the apparent animus of his accuser or prosecutor, though a 
superior officer and of high rank. But an attack upon such a superior, 
of a personal character and not apposite to the facts of the case, is not 
legitimate; nor is language of marked disrespect employed toward the 
court. Matter of this description may indeed be required by the 
court to be omitted by the accused as a condition to his continuing his 
address or filing it with the record. R. 27, 520, Feb., 1869. 

V H 4. Where the accused submits a written statement in his 
behalf, or interposes a plea, such plea or statement should be signed 
by him, or by counsel in his behalf, and appended to the record. C. 
18764, Nov. 9, 1910. 

V H 5. The publication by an officer, after his acquittal, of the 
statement presented by him to the court on his trial, in wliich he 

* See Counsel, Court Martial Manual of 1908, p. 26. 
» See G. C. M. O. 2, Dept. of the Missouri, 1880. 

' That a sworn statement can not be made to serve as the testimony of the accused 
as a witness under the act of Mar. 16, 1878. 

* That a fact clearly admitted or assumed in the course of a trial may be considered 
as much in the case as if it had been expressly proved, see Paige v. Fazackerly, 36 
Barb. (N. Y.), 392. 



DISCIPLINE VI. 507 

reflected in violent and vituperative language upon the motive and 
conduct of an officer of the same regiment, his accuser, and denounced 
him as devoid of the instincts of a gentleman and a disgrace to the 
service — lield, to constitute a serious miUtary offense, to the prejudice 
of good order and military discipline, if not indeed a violation of 
article 61 ; and further that it was no defense to such a publication 
that the court on the trial had permitted the statement to be made 
and recorded. R. S3, 582, Dec, 1872; 34, 186, Mar., 1873. 

VI. Held, that an acquittal leaves the accused in the condition in 
which he was before the trial. C. I4I8, June 6, 1895. 

VI A. To add a new member to a military court after any material 
part of the trial has been gone through with, must always be a most 
undesirable measure, and one not to be resorted to except in an excep- 
tional case and to prevent a failure of justice. Adding a member after 
all the testimony has been introduced, and nothing remains except the 
finding and sentence, is beUeved to be without precedent. R. 4i, 
525, Mar., 1879. 

VI B. While it is in general undesirable that a member of a miUtary 
court should testify as a witness at a trial had before such court, unless 
perhaps liis testimony relates to character merely, yet the fact that he 
is called upon to testify, while it does not affect the validity of the 
proceedings,^ does not operate to debar the member himself from the 
exercise of any of the duties or rights incident to his membership. 
He remains entitled to take part in all deliberations, including indeed 
those had in regard to the admissibility of questions put to liimself or 
of his answers to questions. R. 26, 216, Nov., 1867. 

VI C. An officer was released from arrest, then served as a member 
of a general court-martial, and was later again placed in arrest. 
Held, that since the officer at the time he sat as a member of the general 
court-martial was not in arrest, liis status as a member of the court 
was entirely proper. C. 19394, ^lar. 21, 1906. 

VI D. A member of a court-martial, though strictly answerable 
only to the convening authority for a neglect to be present at a session 
of the court, will properly, wlien prevented from attending, communi- 
cate the cause of his absence to the president or judge advocate, so that 
the same may be entered in the proceedings. Wliere a member, on 
reappearing after an absence from a session, fails to offer any explana- 
tion of such absence, it will be proper for the president of the court to 
ask of him such statement as to the cause of his absence as he may 
tliink proper to make.^ R. 30, 315, May, 1870. 

VI E. An officer is not exempt from arrest by virtue of being at 
the time a member of a general court-martial.^ R. 7, 320, Mar., 1864- 

VI F. Wliere, in the course of a trial by court-martial, a member of 
a court is served with a legal order in due form dismissing or discharg- 
ing him from the military service, or an official communication notify- 
ing him of the acceptance of his resignation, he becomes thereupon 
separated from the Army and can no longer act upon the court; he 
should therefore at once withdraw therefrom, and the fact of his with- 

^ Compare People v. Dohring, 59 N. York, 374. 

"^ It need scarcely be added that the absence of a member doea not affect the legality 
of the proceedings, provided a quorum of members remain. See 7 Op. At. Gen., 101. 

^ But an arrest of an officer while actually engaged upon court-martial duty should, 
if practicable, be avoided. 



508 DISCIPLINE VI G 1. 

drawal/ explained by a copy of the order, be entered upon the record. 
R. 11, 203, Dec, 1864. But where the term of service of a member 
as an officer of volunteers expired pending a trial by the court, Jield 
that the member was not thereupon disqualified, but could legally con- 
tinue to act upon the court till actually discharged or mustered out of 
the service.^' R. 15, 111, Mar., 1865. 

VI G 1. No special rank or qualifications are required for the posi- 
tion of president of a military court. In our practice the president is 
not appointed as such ; he is simply the senior in rank of the members 
present, and he presides by virtue of his seniority alone. If the senior 
of the officers detailed in the convening order is not present with the 
court at the original organization, the next senior present becomes 
president; so, if the officer who presided at the beginning of a trial is 
at a subsequent stage of the proceedings relieved or compelled to be 
absent by sickness, etc., the next ranking officer present presides as a 
matter of course ; and the senior officer present with the court at the 
termination of the trial authenticates the proceedings as president. 
R. 30, 246, Apr., 1870; C. 5332, Nov., 1898. 

VI G 2. While a special authority — that of swearing the judge- 
advocate — is devolved upon the president of a military court by 
statute (the eighty-fifth article of war), such officer has, in other 
respects, as in preforming the usual duties of a presiding officer, in 
authenticating the proceedings with his signature, and in communi- 
cating with the convening officer or other commander, no original 
authority, but acts simply as the representative and "organ" of the 
court.3 R. 27, 678,_ June, 1869; 30, 2^6, Apr., 1870. 

VI G 3. The president of a military court has no command as such; 
as president he can not give an order to any other member. As the 
organ of the court he gives, of course, the directions necessary to the 
regular and proper conduct of the proceedings ; but a failure to comply 
with a direction given by him, while it may constitute "conduct to 
the prejudice of good order and military discipline," can not properly 
be charged as a "disobedience of a lawful command of a superior 
officer," in violation of article 21 . R. 30, 246, 315, Apr. and May, 1870. 

VII A. A court-martial has only statutory powers. Held, there- 
fore, that it can exercise no common law functions such as the general 
power to punish for contempt. R. 49, 306, Aug. 27, 1885. 

VII B 1. To be taken cognizance of by the court, it is not essential 
that a charge should be signed by any officer. If, though not so 
signed, it be duly officially transmitted by the convening commander, 
or other competent superior authority, to the court — either directly or 
through the judge advocate — "for trial," or "for the action of the 
court," or in terms to such effect, it is sufficiently authenticated for 
the purposes of trial, and trial upon it may be proceeded with by 

^ But the receipt by a member, during the proceedings of the court, of an appoint- 
ment to a higher rank, or of other official notice of his promotion, can affect in no 
manner his competency to act upon the court. The fact of the promotion should 
indeed be noted in the record and the officer be thereafter designated by his new 
rank. 

2 In a case in G. C. M. O. 104, Dept. of Kentucky, 1865, the proceedings were, 
properly, disapproved because a member had remained and acted upon the trial after 
receiving official notice of his muster out. 

^ In deUberations on questions raised upon a trial, as well as in the finding and the 
adjudging of the sentence, the presiding member is on a perfect equality with the 
Cither members. He has no casting vote, nor, if the vote is even, does his vote have 
any greater or other weight or effect than that of any other member. 



MSCIPLINE VII B 2. 509 

arraignment thereon of the accused. R. 55, 369, Mar., 1888; 30, 
489, July, 1870; P. 59, 258, May, 1893; C. 3913, Apr., 1898.^ 

VII B 2. A court-martial is not authorized, in its discretion and 
of its own motion, to reject or strike out a charge or specification 
formally referred to it for trial by competent authority, nor to direct 
or permit the judge advocate to drop or withdraw such a charge or 
specification, or enter a nolle prosequi as to the same. For such 
action the authority of the convening commander is requisite.^ But 
where, by a special plea or objection, an issue is made by the accused 
as to the sufficiency of any pleading, the court, without referring the 
question to the convening officer, is empowered to allow the plea or 
objection and quash or strike out the charge, etc. ^ R. 29, 370, Oct., 
1869: P. 20, 378, Nov., 1887. 

VII C 1. Except where it sustains a challenge under article 88, a 
court-martial is not authorized to dispense with the attendance of a 
member.^ R. 37, 34, Sept., 1875. It can not excuse a member to 
enable him to attend to other duties ; for example, to act as counsel 
for the accused. For such purpose he must be duly relieved by the 
convening authority. R. 21, 650, Sept., 1866; 35, 488, 490, July, 
1874- Where a court-martial relieved two of its members on the 
ground that, having been absent from a portion of the proceedings, 
they had not heard a portion of the testimony, held that, provided 
five members had always remained and been present, the validity of 
the findings and sentence was not afi^ected, and the same would 
properly be approved unless it appeared that the action of the court 
had in some manner prejudiced the defense. P. 15, 48, Feb., 1887; 
C. 4642, July 19, 1898; 5325, Nov. 15, 1898; 5484, Dec. 9, 1898; 
6121, Mar. 25, 1899; 18305, July 17, 1905; 22162, Oct. 5, 1907.^ 

VII C 1 a. Held that a general court-martial has no authority to 
seat members in anv order of rank different from that indicated by 
the convening order. C. 15262, Sept. 8, 1903. 

VII C 2. For the court or the president of the court to place or 
order the judge advocate in arrest would be an unauthorized proceed- 
ing. The court indeed, in a proper case under article 86, might pro- 
ceed against its judge advocate as for a contempt. But an arrest 
could not be imposed nor a punishment executed in the case of such 
officer except through the convening authority or other competent 
commander. R. 3, 603, Sept., 1863; 21, 629, Sept., 1866. 

VII G 3. A court-martial has no authority over the person of an 
accused except when he is before it for trial. It can not arrest him, 
or by its. own order cause him to be brought to the place of trial, the 
compelling of his attendance before the court being a duty of the 
convening officer or post commander. R. 22, 606, Feb., 1867; 39, 44) 
Dec, 1876. 

VII D. A military court has no authority to assign counsel to an 
accused unprovided with counsel. So held that it has no power 
whatever to compel an officer to act as counsel for an accused. R. 
13, 4OG, July, I874. Nor can such a court excuse one of its members 
to enable him to act as counsel for an accused. R. 35, 490, July, 
1874; P- 57, 417, Jan., 1893. 

' Compare G. C. M. O. 13, Dept. of the Missouri, 1877; do. 36, 79, Dept. of the 
Platte, 1877; do. 13, id., 1878; do. 41, id., 1880; do. 45, 48, Div. of Pacific and Dept. 
of Cal., 1880. 

^ This paragraph sets forth the established practice in our service. 

^ Compare 7 Op. Atty. Gen., 98. 



510 DISCIPLINE VII E. 

VII E. When a court-martial desires to have the benefit of the 
testimony of a party who has not been introduced as a witness by the 
prosecution or defense, it may properly call upon the judge advocate 
to have such party summoned, or, if he is a military person, may 
apply to the convening authority or post commander to have him 
ordered before it to testify,^ and it may adjourn the trial for a reason- 
able time to await his attendance. R. 25, 678, May, 1868. 

VII E 1. A court-martial (by subpoena duces tecum, through the 
judge advocate) may summon a telegraph operator to appear before 
it and bring with him a certain telegraphic dispatch. Held that 
telegrams are not privileged.^ P. 31, U9, Apr., 1889; C. 20085, 
July 19, 1906. 

VII F. A court-martial has, as such, no authority to arrest, or to 
require its judge advocate or other officer to arrest, a witness sus- 
pected of false swearing upon a trial which has been had before it; 
in such a case its proper course is to report the facts to the convening 
authority for his action. R. 3, 109, July, 1863. 

VIII A 1. Courts-martial (though, within their scope and prov- 
ince, authoritative and independent tribunals) are bodies of excep- 
tional and restricted powers and jurisdiction; their cognizance being 
confined to the distinctive classes of offenses recognized by the mih- 
tary code.^ Their jurisdiction is criminal, their function being to 
award (in proper cases) punishment; they have no authority to 
adjudge damages for personal injuries or private wrongs.* R. 27, 
45%, Jan., 1869. They have no power to rescind a contract or to pass 
upon other civil rights. They are called into existence solely for the 
purpose of awarding punishment for military offenses. C. 3608, 
Nov., 1897; 11196, Sept., 13, 1901; 17768, Apr. 25, June 17, 1905. 

VIII A 2. A court-martial can not be availed of for the collec- 
tion of the private debts of officers; it can take no notice of their 
financial obligations except as evidence of fraud or dishonor when 
admissible in proof of an offense under the Articles of War. P. 35, 
463, Oct., 1889. 

^ It has not been the practice in this country for the convening authority to detail 
an officer to attend a military court in a ministerial capacity — to summon witnesses, 
enforce the attendance of the accused, etc. In the special case, indeed, of the persons 
charged with complicity in the assassination of President Lincoln, and tried by mili- 
tary commission, it was ordered by the President, May 1, 1865, as follows: "That 
Bvt. Maj. Gen. Hartranft be assigned to duty as special provost marshal general for 
the purposes of said trial, and attendance upon said commission, and the execution 
of its mandates." 

2 See Wigmore on Evidence, Vol. IV, section 2287. 

3 Ex parte Watkins, 3 Pet., 193, 209; Barrett v. Crane, 16 Vt., 246; Brooks v. 
Adams, 11 Pick., 440; Brooks v. Davis, 17 id., 148; Brooka v. Daniels, 22 id., 498; 
Washburn v. Phillips, 2 Met., 296; Smith v. Shaw, 12 Johns., 257; Mills v. Martin, 19 
id., 7; In matter of Wright, 34 How. Pr., 221; Duffield v. Smith, 3 Sergt. & Rawle, 
590; Bell v. Tooley, 12 Iredell 605; State v. Stevens, 2 McCord, 32; Miller v. Seare, 
2 W. Black., 1141; 6 Op. Atty. Gen., 425. "A court-martial is a court of limited and 
special jurisdiction. It is called into existence by force of express statute law, for a 
special purpose, and to perform a particular duty; and when the object of its creation 
is accomplished, it ceases to exist. * * * jf^ jn its proceedings or sentence, it 
transcends the limit of its jurisdiction, the members of the court, and the officer who 
executes its sentence, are trespassers, and as such are answerable to the party injured, 
in damages in the courts." 3 Greenl. Ev., sec. 470. See also McNaghten, pp. 175, 
176. 

* See 2 Greenl. Ev., sees. 471, 476; United States v. Clark, 6 Otto, 40; Warden 
V. Bailey, 4 Taunt., 78. 



DISCIPLINE VIII B. 511 

VIII B. The jurisdiction of courts-martial is nonterritorial. In 
a case of an officer who exliibited himself in a drunken condition at 
a public ball in Mexico, Tield that liis offense was cognizable by a 
court-martial of the United States, subsequently convened in Texas 
by the department commander. This for the reason that the mili- 
tary jurisdiction does not recognize territoriality as an essential ele- 
ment of miUtary offenses but extends to the same wherever commit- 
ted, a principle which is amply confirmed by the comprehensive pro- 
vision of the sixty-fourth article of war.^ R. 11, 351, Dec, 1864; P- 
48, 52, Jan., 1891; 64,64, Feb., 23, 1894; C. 13517, Aug. 14, 1903. 

VIII C. As the origin and authority of the court-martial are stat- 
utory, lield that the statutes must be closely followed and no pre- 
sumption can be made in favor of the court's jurisdiction. R. 55, 
486, Mar. 31, 1888.^ 

VIII D 1. A soldier, provided he has not been in fact discharged, 
may be brought to trial by court-martial after the term of service for 
which he enlisted has expired, provided, before such expiration, pro- 
ceedings with a view to trial have been duly commenced against him 
by arrest or service of formal charges.^ By such arrest or service the 
miUtary jurisdiction attaches, and, once attached, trial by court- 
martial, and punishment, upon conviction, may legally ensue, though 
the soldier's term of enlistment may in fact expire before the trial be 
entered upon. In the leading case on this point of a seaman in the 
navy (In re Walker, 3 American Jurist, 281), the Supreme Court of 
Massachusetts held' (Jan. 25, 1830) as follows: "In this case the 
petitioner was arrested, or put in confinement, and charges were pre- 
ferred against him to the Secretary of the Navy before the expira- 
tion of the time of his enlistment; and this was clearly a sufficient 
commencement of the prosecution to authorize a court-martial to 
proceed to trial and sentence, notwithstanding the time of service 
had expired before the court-martial had been convened." So held, 
in a case of a soldier of the Regular Army, arrested on the day before 
the expiration of his term of enlistment, with a view to trial for a 
military offense by court-martial, that the jurisdiction of the court 
had duly attached, and that his trial might legally be proceeded with. 
R. 26, 512, Aj)r., 1868. And similarly heM, in repeated cases of sol- 
diers and officers of regular and volunteer regiments. R. 5, 313, 
Nov., 1863; 7, 24, July, 1864; 12, 352, Feb., 1865; 14, 229, Mar., 
1865; 16, 562, Sept., 1865; 27, 599, Apr., 1869; C. 2011, Jan., 1896; 
13016, July 24, 1902; 15133, Aug. 21, 1903; 17022, Oct. 17, 1904; 
17380, Jan. 16, 1905. 

VIII D 2. The discharge of a soldier not taking effect until notice 
thereof, actual or constructive, held that a soldier who committed a 
military offense on the day on which he was to be dishonorably dis- 
charged under sentence but before the discharge was delivered to 
him (or to the officer in charge of the prision at whch he was also 
to be confined under the same sentence) was amenable to the mili- 
tary jurisdiction for the trial and punishment of such offense as 
being still in the military service. P. 27, 383, Oct., 1888. 

» See G. C. M. O. 11, Dept. Texas, 1894. 
2 See G. C. M. 0. 16, War Dept., 1871. 

^ And see Judge Story's chaise to the jury in United States v. Travers, 2 Wheeler 
Cr. C, 490, 509; In the matter of Dew, 25 L. R., 540; In re Bird, 2 Sawyer, 33. 



512 DISCIPLINE VIII D 3. 

VIII D 3. A military prosecution in the case of a deserter has been 
instituted when he is confined under a charge of desertion and, in 
case of civil criminal proceedings, priority in prosecution would relate 
to that date. C. lJfU2, Bee. 5, 1904. 

VIII D 4. A soldier committed a murderous as&ault on his superior 
officer on a military reservation in Oklahoma Territory ; held that he is 
not triable by a court of the United States having criminal jurisdiction, 
as no punishment is prescribed. (See sees. 5339-5342 R. S. and U. S. 
V. Williams, 2 Fed. Rep., 61.) The offense is triable hj the criminal 
courts of the Territory of Oklahoma, and the offender is also triable 
by a general court-martial for striking his superior officer in violation 
oi the twenty-first article of war, or For assault and battery in viola- 
tion of the sixty-second article of war, and upon abandoning the 
prosecution instituted in the United States courts, the jurisdiction of 
a general court-martial will attach.^ C. 20902, Jan. 10, 1909. 

VIII E. Double jeopardy. {See One hundred and second article of 
war.) 

VIII F 1. Such loose and indefinite forms of charge as ''fraud," 
"worthlessness," "inefficiency," "habitual drunkenness," and the 
like, will be avoided by good pleaders. Such charges, however, in con- 
nection with specifications setting forth actual military neglects or 
disorders (not properly chargeable under specific articles) may be 
sustained as equivalent to charges of "conduct to the prejudice of 
good order and military disciphne." R. 19, 280, Dec, 1865; 28, 253, 
Dec, 1868. 

VIII F 2. Wliere a specific offense is charged (i. e., an offense made 
punishable by an article other than the general — sixty-second— 
article), and the specification does not state facts constituting such 
specific offense, the pleading will be insufficient as a pleading of that 
offense. Legal effect may, however, be given to a pleading if the 
charge and specification taken together amount to an allegation of 
an offense cognizable by a court-martial under article 62. And in all 
cases — whatever be the form of the charge or specification — if the 
two are not inconsistent, and, taken together, make out an averment 
of a neglect or disorder punishable under this general article, the 
pleading will be sufficient m law and will constitute a legal basis for a 
conviction and sentence. R. 11, 491, Mar., 1865; 15, 680, Oct., 1865; 
16, 551, Sept., 1865. 

VIII G 1 a. But an arrest, though an almost invariable, is not an 
essential prehminary to a military trial; to give the court jurisdiction 
it is not necessary that the accused should have been arrested; it is 
sufficient if he voluntarily, or in obiedience to an order directing him 
to do so, appears and submits himself to trial. So, neither the fact 
that an accused has not been formally arrested, or arrested at all, nor 
the fact that, having been once arrested and released from arrest, he 
has not been rearrested before trial, can be pleaded in bar of trial or 
constitute any ground of exception to the validity of the proceedings 
or sentence. R. 2, 77, Mar. 13, 1863; 17, 419, Oct., 1865; 19, 419, Feh. 
15, 1866; 28, 27, July, 1868; 29, 470, Nov. 27, 1869; 35, 142, Jan. 28, 
1874; 0.8982, Sept. 17,1900. 

VIII Gib. Persons in the mihtary service are amenable to the 
jurisdiction of courts-martial for military offenses committed by them 

^ Case of Corp. Edward L. Knowles for assault on Capt. Macklin, tried and convicted 
by general court-martial. 



DISCIPLINE VIII G 1 C. 513 

while in arrest or confinement awaiting trial by court-martial. P. 33, 
335, June, 1889. 

VIII G 1 0. A suspension from rank does not affect tlie right of 
the officer to his office. He retains the same as before, and, as an 
officer, remains subject as before to military control as weU as to the 
jurisdiction of a court-martial for any mihtary offense committed 
pending the term of suspension.^ R. 30, 157, Mar., 1870; 37, 536, 
May, 1876; 38, 221, Aug., 1876; 39, U6, Feb., 1878; C. 17277, Dec. 
15, 190^. 

VIII G 1 (1). The status of an officer under suspension is the 
same whether such suspension has been imposed directly by sentence 
or by way of commutation of a more severe punishment. Thus where 
a sentence of dismissal was commuted to suspension from rank on half 
pay for one year, held that the officer, while forfeiting the rights and 
privileges of rank and command during such term, was yet amenable 
to trial by court-martial for a military offense committed pending the 
same. R. 38,' 221, Jan., 1877. 

VIII G 2 a. By the sixth amendment of the Constitution, 
civilians are guaranteed the right of trial by jury ''in all criminal 
prosecutions." Thus — in time of peace — a court-martial can not 
assume jurisdiction of an offense committed by a civilian without a 
violation of the Constitution. It is only under the exceptional cir- 
cumstances of a time of war that civilians ma}^, in certain situations, 
become amenable to trial by court-martial.^ R. 19, 475, Mar., 1866; 
38, 641, June, 1867; C. 17901, Aiw. 27, 1905. 

VIII G 2 a. (1). Meld that any statute wliich attempts to give 
jurisdiction over civilians, in time of peace, to military courts is 
unconstitutional. R. 42, 250, Ajyr. 1879; C. 20120, July 31, 1906; 
17901, Apr. 27, 1905. 

VIII G 2 a. (2). In order to become amenable to the military juris- 
diction, an officer or soldier must have been legally and fully admitted 
into the mihtary service of the United States. Thus, held that an 
officer of State volunteers appointed by a governor of a State, but not 
yet mustered into the United States service, was not amenable to the 
jurisdiction of a court-martial of the United States for an offense 
committed while engaged in recruiting service under the authority of 
the governor. R. 12, 475, July, 1865; C. 4294, June 8, 1898. 

VIII G 2 a. (3) . Held that a court-martial would have no jurisdic- 
tion over a civilian who in time of peace had assaulted the com- 
mander in chief or any other liigh official of the Army. Held further, 
that such jurisdiction is exercisable in time of peace only oA'^er those 
who have subjected themselves thereto by entering the Army. 
a 11210, Sept. 10, 1901. 

VIII G 2 b. The act of June 18, 1898 (30 Stat. 483), gave jurisdic- 
tion to general courts-martial over offenses committed by general 

• See 5 Op. Atty. Gen., 740; 6 id., 715. 

^ See, in support of this view, Ex -parte Milligan, 4 Wallace, 121-123; Jones v. 
Seward, 40 Barb., 563; In matter of Martin, 45 id., 145; Smith v. Shaw, 12 Johns., 
257, 265; In matter of Stacv, 10 id., 332; Mills v. Martin, 19 id., 22; Johnson v. 
Jones, 44 Ills., 142, 155; Griffin v. Wilcox, 21 Ind., 386; In re Kemp, 16 Wis., 382; 
Ex parte McRoberts, 16 Iowa, 605; Antrim's case, 5 Philad., 288; 3 Op. Atty. Gen., 
690; 13 id., 63. 

A civilian brought to trial before a court-martial, can not, by a plea of guilty or 
other form of legal assent, confer jurisdiction upon the court where no jurisdiction 
exists in law. Compare People v. Campbell, 4 Parker, 386; Shoemaker v. Nesbit, 2 
Rawle, 201; Moore v. Houston, 3 Sergt. & Rawle, 190; Duffield i;. Smith, id., 599. 

93673°— 17 33 



514 DISCIPLINE VIII H 1. 

prisoners during their confinement as such. Held that this act was 
not intended to make any other change in existing law and should 
not be so construed. C. 5589, Dec, 1898; 10003, Apr. 25, 1901; 
13926, Jan. 12, 1903; 16220, Apr. 23, 1904. 

VIII H 1. It can not affect the authority of a court-martial to take 
cognizance of the military offense involved in an injury committed 
by a soldier against an officer, that, before the trial, the latter has 
resigned or been otherwise separated from the Army. R. 32, 623, 
May, 1872. 

VIII H 2. The accused has a right to be present during all the 
material proceedings of his trial. Held, however, that he may waive 
the right to be present, and if he does so, the validity of the proceed- 
ings is not affected.* R. 2^, 488, Apr., 1867. Held further, that 
where an accused had thus absented himself, the court had jurisdic- 
tion to continue the proceedings and arrive at a finding and sentence.^ 
R. 11, 260 and 295, Dec. 1864; 21, 169, Jan. 1866; C. 14767, June 13, 
1903; Jan. 4 and Feb. 18, 1904, and Feb. 6, 1906; 23941,^ Mar. 1, 
1909. Held further, in such a case that if the accused has counsel, 
the court may in its discretion allow such counsel to continue the 
presentation of the case, including the introduction of evidence and 
the presentation of an argument. R. 19, 487, Mar., 1866; C. 14767. 
June 13, 1903; 21787, July 16, 1907; 23941, Mar. 1, 1909. 

VIII II 3. When an officer or enlisted man has been arraigned 
before a duly constituted court-martial for an offense legally triable 
by it, tlie jurisdiction thus attached can not be set aside by a process 
01 a State court; the jurisdiction of the latter being for the time 
suspended. Tlie offender may, of course, be voluntarily surrendered 
by the United States." P. 8,484, June, 1886. 

VIII I 1 . An officer or soldier (except as otherwise provided in the 
sixtieth article) ceases to be amenable to the military jurisdiction, for 
offenses committed while in the military service, after he has been 
separated therefrom by resignation, dismissal, being dropped for 
desertion, muster out, discharge, etc., and has thus become a civilian.* 
R. 1, 395, Nov., 1862; 2, 49, Mar., 1863; 12, 476, July, 1865; 13, 
108, Dec, 1864; 19, 64 and 71, Oct., 1865; 21, 37, Nov., 1865; 31, 34 
and 4S, Nov., 1870, and 571, Aug., 1871; 33, 354, Sept., 1872; 34, 406 
and 4-22, Aug., 1873; 35, 649, Nov., 1874; 42, 313, June, 1879; 50, 634, 
Aug., 1886; C. 14389, Aug. 13, 1903. 

' 12 Cyc. 527 and authorities rited. 

2 See Fight v. The State, 7 Ohio, 180; McCorkle v. The State, 14 Ind., 39; State v. 
Wamire, 16 Ind., 357; U. S. v. Longhory, 13 Blatch., 267 (Fed. Cas. 15631); State v. 
Peacock, 50 N. J. Law 34; State v. Commonwealth, 2 Ky. Law Rep., 305; Common- 
wealth v._ Fred M. Smith et al, 163 Mass., 411. 

. _ 2 In this case the accused officer escaped during the trial and went outside the 
limits of the United States. The court proceeded with the trial and sentenced the 
officer to dismissal and confinement at hard labor in a penitentiary for five years.. 
The sentence was approved and confirmed by the President and ordered carried into- 
execution, and the proceedings were published in G. O. No. 45, War Department,, 
1909, and a penitentiary designated as the place of confinement. 

^ 6 Op. Atty. Gen., 423, Ex parte McRoberts, 16 Iowa, 696. 

^ See this principle repeated and illustrated in G. C. M. 0. 4, 16, War Dept., 1871; 
G. O. 90, Dept. of Pennsylvania, 1865; do. 43, Middle Dept., 1865; do. 22, Dept. of 
the Missom-i, 1866. 

^^ See Parker v. Clive, 4 Burrow, 2419 (dated 1779), that officers of the (British) army, 
"after resigning their commissions, cease to be objects of military jurisdiction." The 
Sackville case is not a precedent either in England or this country. 



DISCIPLINE VIII I 1 a. 515 

VIII I 1 a. A person who, by reason of acceptance of resignation, 
dismissal, discharge, etc., has become wholl}^ detached from the mili- 
tary ser\ace, can not be made liable to trial by court-martial for 
offenses committed while in the service on the ground that such 
offenses were not discovered till after he had left tlie army. R. 37, 
374, Mar., 1876. 

VIII lib. The returning by a dismissed, etc., officer or soldier to 
the service does not revive a jurisdiction for offenses committed 
while he was in the service which had lapsed upon his being separated 
from it.i R. 5, 314, Nov., 1863; 35, 649, Nov., 1874; 50, 501, July, 
and 634, Aug., 1886; C. 22840, Mar. 4, 1908. 

VIII lie. An honorable discharge releases from and marks the 
termination of the particular contract and term of enlistment to 
which it relates only, and does not therefore relieve the soldier from 
the consequences of a desertion committed during a prior enlistment. 
P. 49, 442, Oct., 1891; 53, 179, Apr., 1892; 59, 86, Apr., 1893. Simi- 
larly Tield with respect to a discharge mthout honor. C. 2115, Mar., 
1896. These discharges release the soldier from amenability for all 
offenses charged against him mthin the particular term to which 
they relate, including that of desertion, except as provided in the 
sixtieth article of war. C. 2041, May, 1896. But a dishonorable 
discharge (i. e., by sentence) does not relate to any particular contract 
or term of enlistment ; it is a discharge from the military service as a 
punishment — a complete expulsion from the Army — and covers all 
unexpired enlistments. A soldier thus dishonorably discharged can 
not be made amenable for a desertion or other military offense com- 
mitted under a prior enlistment, except as provided in the sixtieth 
article of war. Nor would a subsequent enlistment after such dis- 
honorable discharge operate to revive the amenability of the soldier 
for such offenses. P. 53, 179, supra; 55, 165, Aug., 1892; 59, 55, 
Apr., 1893; C. 7614, Jan., 1900. 

VIII lid. The retention of military control over a dishonorably 
discharged soldier for the purpose of execution of sentence does not 
confer military jurisdiction over offenses that may have been com- 
mitted by him previous to his separation from the service, as he is 
held under control as a general prisoner, not as a soldier. R. 31, 34, 
Nov., 1870; 32, 190, Dec, 1871; 33, 354, Sept., 1872; 41, 228, May, 
1878; a 7614, Jan., 1900; 8051, Apr. 19, 1900; 9406, Dec. 20, 1900; 
10003, Apr. 25, 1901; 13926, Jan. 12, 1903; 17857, Apr. 17, 1905. 
Held, that the act of June 18, 1898 (30 Stat., 483), which conferred 
military jurisdiction over general prisoners, did not confer upon 
courts-martial jurisdiction as to offenses committed by such men pre- 
vious to their dishonorable discharge. C. 7762, Mar., 1900; 8051, 
Apr., 1900; 9406, Dec, 1900. 

VIII I 2. On the question as to whether a commissioned officer 
could be tried for misconduct as a cadet, held, that there is ground 
for the view that a prosecution may be instituted against an officer 
for an offense committed while a cadet, although no precedent exists 
in the military service for such prosecution. Cadets iire not discharged 
upon graduation, but may be promoted second lieutenants; there 

^ It is to be understood that the general rule of the nonamenability to military trial 
of officers and soldiers after discharge, dismissal, etc., for offenses committed prior 
thereto is subject to a specific statutory exception, viz, that provided for in the con- 
cluding provision of the sixtieth article. 



516 DISCIPLINE IX A. 

would, therefore, appear to be no hiatus in the mihtary status of a 
man between the time he serves as a cadet at the Mihtary Academy 
and the time when he serves under a commission. C. 22475, Mar. 2, 
1907. 

IX A. A court-martial should in general be left to determine its 
own course of procedure, except where the same is defined by law, 
regulation, or usage. It would be unwarranted by usage to require 
in orders that a court-martial shall adopt a certain procedure in any 
case or class of cases as to a matter properly withm its discretion. 
Thus a commander could not properly order that courts-martial con- 
vened by him should take testimony in cases in which the accused 
pleaded guilty, though he might properly recommend their doing 
so. R. 34, 138, Feb., 1873. 

IX B 1 . There is no law prohibiting a court-martial of the United 
States from sitting on Sunday, and the fact that a sentence of such 
a court is adjudged on that day can affect in no manner its validity 
in law. R. 39, 321, 627, Nov., 1877, and Aug., 1878; C. 2955, 
Feh., 1897; 15591, Dec. 9, 1903. 

IX C. A court-martial is authorized, in its discretion, to sit with 
doors closed to the pubUc. Except, however, when temporarily 
closed for deliberation, courts-martial in this country are almost 
invariably open to the public during a trial. R. 29, 34, June, 1869. 
But in a particular case where the offenses charged were of a scan- 
dalous nature, it was recommended that the court be directed to sit 
with doors closed to the public. C. 1637, Aug., 1895; G. C. M. 
Record No. 55974- 

IX D. A court-martial, after having entered upon a trial which has 
to be suspended on account of the absence of material witnesses, or 
for other cause, is authorized, in its discretion, to take up a new case 
not likely to involve an extended investigation, and proceed with it 
to its termination before resuming the trial of the first case. R. 3, 
28L Aug., 1863; 9, 650, Sept., 1864; 26, 548, May, 1868._ 

IX E 1. Where the act committed involves several distinct offenses, 
the accused may properly be arraigned upon the same number of 
separate charges. R. 30, 489, July, 1870. 

IX E 2. A court-martial is authorized, in any case, in its discretion, 
to permit an accused to withdraw a plea of not guilty, and substitute 
one of guilty, and vice versa, or to withdraw either of these general 
pleas and substitute a special plea. And wherever the accused apphes 
to be allowed to change or modify his plea, the court should in gen- 
eral consent provided the application is made in good faith and not 
for the purpose of delay, and to grant it will not result in unreason- 
ably protracting the investigation. R. 30, 672, Oct., 1870. 

IX E 3. Facts and circumstances wliich are properly matters of 
evidence are not legitimate subjects of pleas; as, for example, cir- 
cumstances going to extenuate the offense. Thus held that good 
conduct of the accused in battle subsequent to the commission of the 
offense charged could not properly be presented in the form of a plea. 
R. 6, 79, Apr., 1864- So lield that the fact that the charge was pre- 
ferred through personal hostility to the accused was not matter for 
plea, but, if desired to be taken advantage of, should be offered in 
evidence. R. 34, 654, Oct., 1873. 

IX E 4. Where an accused declined to plead on the ground that he 
was so much under the influence of liquor at the time of the acts 



DISCIPLINE IX E 5 a. 517 

charged that he could not remember what occurred, held that the 
court properly directed a plea of ''not guilty" to be entered. R. 49, 
645, Dec, 1885. 

IX E 5 a. Wliile it can not properly be ordered by a commander 
that courts-martial convened by him shall not receive pleas of guilty, 
or shall take evidence on the merits notwithstanding pleas of guilty 
are interposed by the accused, it is jei proper, and in general desir- 
able, particularly in cases of enlisted men, and especially where the 
specifications do not fully set forth the facts of the case, that the prose- 
cution should be instructed or advised to introduce, with the consent 
of the court, evidence of the circumstances of the offense, where the 
plea is guilty equally as where it is not guilty. This for the reason 
that the court may be better enabled correctly to appreciate the 
nature of the offense committed and thus to estimate the measure of 
punishment proper to be awarded; and further tliat the reviewing 
authority may be better enabled to comprehend the entire case, and 
to determine whether the sentence shall be approved or disapproved 
(in whole or in part), or shall be mitigated or (in whole or in part) 
remitted. Where indeed the sentence is not discretionary with the 
court, the former reason does not apply, though in such case tlie evi- 
dence may be desirable as the basis for a recommendation by the mem- 
bers. But where the sentence is mandatory, the latter reason applies 
with the greater force, since the mandatory punishments under 
Articles of War are in general of the severest quality, and the review- 
ing officer in acting upon the same is called upon to exercise an espe- 
cially grave discretion. In capital cases particularly, it is most impor- 
tant that all the facts of the case — all circumstances of extenuation as 
well as of aggravation — should be exhibited in evidence. R. 3, 647, 
Sept., 1863; 6, 370, Sept., 1864; 29, 124, July^ 1869; 39, 206, Oct, 
1877; C. 5093, Oct., 1898. In practice, the absence of evidence to 
illustrate the offense has been found peculiarly embarrassing in cases 
of deserters. In a majority of these cases in which the plea is ' ' guilty," 
the record is found to contain no testimony whatever; and a full and 
intelligent comprehension of the nature of the offense — ^whether 
desired upon the original review of the proceedings or upon a subse- 
quent application for remission of sentence — is thus, in many instances 
not attainable.^ R. 27, 180, Sept., 1868. 

But in all cases where evidence is introduced by the prosecution 
after a plea of guilty, the accused should of course be afforded an 
opportunity to offer rebutting evidence, or evidence as to character, 
should he desire to do so. R. 13, 423, Feb., 1865. 

IXE 5 a (1). Wherever, in connection with the plea of guilty a 
statement or confession, whether oral or written, is interposed by the 
accused, both plea and statement should be considered together by 

' The principle that iu cases in which the plea is guilty the court should take tes- 
timony, where necessary to the comprehending of the facts and the doing of justice 
though apparently iu a measure lost sight of at a later period, was clearly enunciated 
in early general orders of the War Department. Thus, in G. O. 23 of 1830, Maj. 
Gen. Macomb (commanding the Army) expresses himself as follows: "In every case 
in which a prisoner pleads guilty, it is the duty of the court-martial, notwithstand- 
ing, to receive and to report in its proceedings such evidence as may afford a full 
knowledge of the circumstances; it being essential that the facts and particulars 
should be known to those whose duty it is to report on the case, or who have discretion 
in carrying the sentence into effect." And see G. O. 21, of 1833, to a similar effect. 
See G. C. M. O. 69, Hdqrs. of Army, 1877. 



518 DISCIPLINE IX E 5 a (2). 

the court ; and if it is to be gathered from the statement that evidence 
exists in regard to the alleged offense which will constitute a defense 
to the charge, or relieve the accused from a measure of culpability, 
the court will properly call upon or permit the judge advocate to 
obtain and introduce such evidence, if practicable. R. I4, 585 and 
696, June, 1865; 26, 562, May, 1868; 28, 123, Sept., 1868; 29, 11, 
348, June and Oct., 1869, and 658, Feb., 1870. 

IX E 5 a (2), It not unfrequently happens upon trials of enlisted 
men that the accused, in pleadmg guilty, will proceed to make a 
statement (oral or written) to the court, which is in fact inconsistent 
with the plea. Thus, in a case where the accused, bemg evidently 
ignorant of the forms of law, pleaded guilty to an artificially worded 
charge and specification, and immediately thereupon made an oral 
statement to the court of the particulars of his conduct setting forth 
facts quite incongruous with his plea, and no evidence whatever was 
introduced in the case; held that the statement, rather than the plea, 
should be regarded as the intelHgent act of the accused, and that, 
upon considering both together, the accused should not be deemed 
to have confessed his guilt of the specific charge. R. 8, 274, -^pr., 
1864; 17, 48, June, 1865; 30, 33, July, 1869. In such a case the 
court will properly counsel the accused to plead not guilty, or direct 
such plea to be entered, and proceed to a trial and investigation of 
the merits (R. 6, 357, 370, Sept., 1864) ) tl^e judge advocate introduc- 
ing his proof precisely as under an ordinary plea of not guilty. P. 61 , 
394, Sept., 1893. 

IX E 5 a (3). In the interests of justice and for the purpose of fully 
informing itseK of the facts, the court may, in its discretion, allow 
the introduction, by either side, of material testimony after the case 
has been formally closed,^ but before a finding had been reached . Such 
a proceeding, however, must be of course exceptional, and a party 
should not be permitted to ofl'er testimony at this stage, unless he 
exliibits good reason for not havmg produced it at the usual and 
proper time. R. 12, 4OI, May, 1865; 17, 398, Oct., 1865; 31, 35, 
Nov., 1870. 

IX E 5 b. The admission of evidence after reaching a fiiidmg and 
receiving the evidence of previous convictions is highly irregular. 
So long as the proceedings remain in its possession the court may 
properly reconsider, modify, or change the findings and sentence, as 
it sees nt, but it is quite improper to reopen the case by hearing new 
evidence after reaching a finding of "guilty" or "not guilty." C. 
18764, May 5, 1906. 

IX F 1 a. An individual pardon must be pleaded ; but a court is 
bound to take judicial notice, as affecting its jurisdiction, of a general 
pardon or anmesty. Thus where a court-martial failed to do so in 
the trial of a deserter who had returned to service under the terms of 

* Compare Eberhardt v. State, 47 Ga.. 598; and see the trial, by coiu-t-martial, of 
B. G. Harris (Ex. Doc. No. 14, H. R., 39th Cong., 1st sess., p. 25), where, on the day 
on which the accused was to present his final argument to the court, and which was 
two days after the formal closing of the case, the defense was allowed to introduce 
new testimony on the merits. 

It is, moreover, tlie duty of a court-martial to see that injustice is not done the 
accused by the admission on the trial of improper testimony prejudicing his defense, 
or unfairly tending to aggravate the misconduct charged. In the interests of justice^ 
therefore, the courts may exclude such testimony, although its admission may not be 
objected to on the part of the accused. Compare State v. O'Connor, 65 Missouri, 374. 



DISCIPLINE IX F 1 a (l). 519 

the amnesty proclamation of March 11, 1865, this fact appearing 
from the specification to the charge of desertion upon which he was 
tried, it was held that the court was without jurisdiction of the offense 
and that the trial had was illegal. C. 127 J^, A^r., 1S95. 

IX F 1 a (1). A plea of a restoration to duty by competent author- 
ity without trial, under the Army Regulations, is in the nature of a 
glea of a constructive pardon, and a good special plea in bar of trial, 
iut going to trial on the general issue waives it.* R. Jf.9, 94, May, 
1885. 

IX F 1 a (2). The fact that a sergeant has been reduced to the 
ranks, confined in arrest, and required to perform work under the 
custody of a sentinel, though such a disposition may be in excess of 
authority, can not constitute a legal plea in bar to a trial upon the 
charge for which he was arrested. Such treatment is apposite to the 
case only as entering into the consideration of the question of the 
quantum of punishment upon conviction. R. ^7, 2^2, July, 1883. 

IX F 2 a. Objections to tlie charges or specifications in matters of 
fonn should be taken advantage of by special pleas in the nature of 
pleas in abatement, or, better, by motion to strike out. Such are 
objections to the specifications as inartificial, indefinite, or redun- 
dant; or as misnaming the accused (or other persons required to be 
specified), or misdescribing him as to his rank or office; or as con- 
taining insufficient allegations of time or place, etc. In such cases 
the objection should be raised by a special plea in abatement, or by 
motion, in order that errors capable of amendment may be amended 
on the spot by tJie judge advocate, and — the plea of not giulty (or 
guilty) being then made — the trial may proceed in the usual manner. 
Objections of tliis class, not thus taken, will properly be considered 
as loaived by the plea of guilty or not guilty, and their existence will 
not then affect the validity of the proceedings or sentence. R. 5, 
577, Dec, 1864; 7, 234, Feb., 1864; 9, 518, Aug., 1864; 15, 117, Mar., 
1865; 24, UO, Jan., 1867; 25, 100, Sept., 1867; 28, 372, Feb., 1869; 
30, 288, Apr., 1870; 34, 32, Nov., 1872; 35, 450, June, 1874; 38, 654, 
June, 1877; 51, 144, Feb., 1887; 56,243, May, 1888. 

Where mthout preliminary objection the accused pleads guilty or 
not guilty to a specification, in which he is incorrectly named or 
described, such plea will be regarded as an admission by the accused 
of his indentity mth the person thus designated, and he can not there- 
after object to the pleadings on account of misnomer or misdescrip- 
tion.2 R. 5, 577, Dec, 1864; 15, 117, Mar., 1865; 25, 100, Sept., 
1867; 51, 144, Feb., 1887: G. 22215, Nov. 4, 1907. 

IX F 3 a. An insane person is no more competent as a witness before 
a court-martial than at common law. Testimony admitted of a 

1 Compare Heard's Criminal Pleading, 296; U. S. v. Wilson, 7 Peters, 150. 

- Objections to the charges and specifications on account of matter of substance, — as 
that they do not contain the necessary allegations, or otherwise do not set forth facts 
constituting military offences, — should properly be made at the outset of the pro- 
ceedings by a special plea in the nature of a demurrer, or they will in general be 
regarded as waived. 

So, objections going to the legal constitution or composition of the court, or to its 
jurisdiction, should also properly be specially presented when the accused is first 
called upon to plead: valid objections of this radical character however, are not 
waived if the accused, instead of submitting a special plea, pleads over to the merits, 
since consent can not confer jurisdiction on a com't martial where none exists in law. 
(See C. 15627, Dec. 7 1903.) 



520 DISCiPLINE ix Q 1. 

person shown to be insane should be stricken out on motion made. 
P. 60, 270, Nov., 1891. 

IX G 1 . Wliere indications of insanity are developed by the accused 
in the course of a trial by court-martial, tlie court will properly 
suspend proceedings and report the facts to the convening authority, 
adjourning meanwhile to await his orders.^ R. 33, 661, Jan., 1873. 

IX H 1. The object of the legislation excluding the judge advocate 
from closed sessions of a court-martial is not only that there should be 
no unfairness to the accused, but that there should be no possibility of 
such unfairness. The statute does not contemplate the exercise of 
any discretion by the court in the matter, nor does it admit of any 
exception being made to the procedure described and required, even 
though such exception be in favor of the accused. A strict compliance 
with its requirements is necessary, and a failure to comply with them 
would probably be held to vitiate the proceedings.^ Advised there- 
fore in the particular case, that if the court had not arrived at a find- 
ing, the court be dissolved, and a new one appointed for the trial 
de novo of the accused. C. 1637, Oct. 1, 1895; 4664, July 23, 1898; 
12962, July 11, 1902; 15746, Mar. 18, 1904. 

IX H 1 a. The act of July 27, 1892 (27 Stat. 278), requiring the 
withdrawal of the judge advocate whenever the court sits "in closed 
session," held not to apply to a meeting of the court to hear read the 
record of the findings and sentence, such proceeding being no part 
of the trial. P. 62, 363, Nov., 1893; C. 11316, Oct. 25, 1901; 15746, 
Nov. 25, 1904; 21294, Aug. 27, 1907. 

IX H 1 b. Held that a court-martial may sit in closed session before 
it has been sworn. C. 5773, Jan. 31, 1899. 

IX 1 1 . It has not unfrequently happened that enlisted men, charged 
with desertion, have, in connection with a plea of guilty, made a state- 
ment disclaiming having had, in absenting themselves, any intention 
of abandoning the service, and stating facts which, if true, constitute 
absence- without-leave only. In such a case the accused can not in 
general fairly be convicted of desertion in the absence of an investiga- 
tion, and the court will properly, therefore, induce him to change his 
plea to not guilty, or direct this plea to be entered and take such 
evidence as may be attainable, to show what offense was actually 
committed.^ R. 26, 562, May, 1868. 

IX I 2. Statements inconsistent with the plea have not rarely been 
made in cases like larceny where several distinct elements are required 

' See a case of this nature, where this course was piirsued, in G. C. M. O. 39, Dept. 
of the Missouri, 1868. As to the similar practice of the civil courts, see People v. Ah 
Ying, 42 Cal. 18; also Taffe v. State, 23 Ark. 34. 

2 So held in cases published in S. O. 19, Dept. of Colorado, 1896; and S. O. 23, Dept. 
of the East, 1896. 

^The views of the Judge Advocate General have been adopted in the general orders 
of the War Department and in numerous orders of the various military department, 
<fec., commands. In G. C. M. O. 2, War Dept., 1872, the Secretary of War observes, 
in regard to two cases of soldiers, as follows: "The written statements submitted by 
the accused are contradictory of their pleas of 'guilty.' The court should have 
regarded these statements as neutralizing the effect of their pleas, and should have 
had the accused instructed as to their legal rights, and advised to change their pleas 
with a view to the hearing of testimony. It not unfrequently happens that soldiers 
do not understand the legal difference between absence- without-leave and desertion, or 
are wholly unable to discriminate as to the grade of their offences, as determined by 
their motives. They thus, sometimes, ignorantly plead guilty and are sentenced for 
crimes of which they may be actually innocent. The proceedings, findings, and sen- 
tences are disapproved." And see G. C. M. O. 31, War Dept., 1876. 



DISCIPLI-NE IX K 1. 521 

to constitute the crime in law. For example, a soldier will plead 
guilty to a charge of larceny, and thereupon make a statement dis- 
claiming the peculiar intent {animus furandi) necessary to the offense, 
thus really admitting only an unauthorized taking. In such cases the 
court will properly instruct the accused that lie should change his plea 
to not guilty, and, if he declines to do so, wiU properly call upon the 
judge advocate to mtroduce evidence showing the actual offense com- 
mitted. R. 28, 677, June, 1869; 29, 658, Feb., 1870. 

IX K 1. A tie vote upon any proposition submitted to the court is 
equivalent to a vote in the negative — ^a majority vote being necessary 
to a determination in the affirmative — and the proposition is not 
approved. Where the vote is a tie upon an objection to testimony, 
the objection is not sustamed. Where it is tied upon a certain pro- 
posed finding or form of sentence, the same is not adopted. R. 31, 
511, 610, July and Aug., 1871; 32, 126, Nov., 1871; 45, 334, June, 
1882; C. 2003, Jan., 1896. 

IX K 2. The polling of a court-martial, in the manner of a jury or 
otherwise, is a proceedmg wholly unknown to military law. So, 
where an officer, acting as the counsel of a soldier on trial by court- 
martial, demanded, on the court ruling adversely upon the admission 
of a special plea, that it be polled, held that his action was wholly 
irregular as- weU as disrespectful to the court.^ R. 34, 4^4, S«pt., 
1873. 

IX K 3. Where the majority of the members of a court-martial have 
come to a decision upon any question raised in the course of the pro- 
ceedings, or upon the finding or sentence, no individual of the mmority, 
whether the president or other member, is entitled to have a protest 
made by himself against such decision entered upon the record. The 
conclusions of the court (except in cases of death sentences, where a 
concurrence of two-thu-ds is required) are to be determined invariably 
by the vote of the majority of its m.embers, and it is much less impor- 
tant that individual members should have an opportunity of publish- 
ing their personal convictions, than that the action of the court should 
appear upon the formal record as that of the aggregate body, and 
should carry weight and have effect as such. R, 11, 203, Bee, 1864; 
25, 542, May, 1868. Nor can a protest (against the finding or 
otherwise) by a minority of the members be appended to the record 
on a separate paper. R. 36, 264; t^^^-, 1875. 

IX L 1. For the president of a court-martial to assume to adjourn 
the court against the vote of the majority of the members would be an 
unauthorized act and a grave irregularity, properly subjecting him to 
a charge under the sixty-second article.^ R. 30, 248, Apr., 1870. 

IX L 2. An adjournment sine die has no more legal effect than a 
simple adjournment/ It does not dissolve the court, as a court has, 
in fact, no power to terminate its owai existence. R. 21, 679, Nov., 
1866; 26, 588, June, 1868; 42, 158, Feb., 1879. After an adjourn- 
ment sine die, the court may without being reconvened by the con- 
vening authority reassemble and take up and try a case referred to 
it by the convening authority precisely as if it had not adjourned at 
aU. R. 19, 628, May, 1866; 4I, 282, June, 1878. It may also be 
reconvened by the convening authority after an adjournment sine die 

1 See G. C. M. 0. 37, War Dept., 1873. 

2 Case of Backenstos, G. 0. 14, War Dept., 1850. 

3 Brown v. Root, Sup. Ct., D. C, 1900 (44087 Law); and see 23 Op. Atty. Gen., 23. 



522 discipli>;e tx m, 

for the purpose of reconsideration of its judgment on a particular 
case and be directed to reframe the sentence, etc.* R. oo, 208, Dec, 
1887; C. 5654, July 24, 1899. 

IX M. Where, indeed, there are no material })roceedings after the 
sentence, the subscription of the hitter by tlie president and judge 
advocate wdl constitute a sufficient authentication of the record as a 
wliole. R. 19, 616, May, 1866. Where th.e president or judge 
advocate has been clianged pending the trial, it is of course the last 
one, the one who was serving at the close of the trial, who should sign 
the record. R. 29, 604, Jan., 1875;^ C. 5332, Nov., 1'898. A judge 
advocate appointed after the conclusion of a trial would not be com- 
petent to authenticate the record of such trial. C. 5230, Oct., 1898. 

IX N 1 . Where the record of a trial, as forwarded to the reviewing 
authority for his action, is deemed by him to exhibit some error, 
omission, or other defect in the proceedings capable of being supplied 
or remedied by the court; as, for example, an inadequate, dlegal, 
or irregular sentence, or a flndmg not authorized by the evidence; or 
an omission of some material matter — as a failure to prefix to the 
record a copy of the convening order, or to authenticate the proceed- 
ings by the signatures of the president and judge advocate, or to enter 
the proper statement as to the members present, or to recite as to 
the offering to the accused of an opportunity to object tor the same or 
as to the qualifying of the court by the prescribed oaths, or to fully 
record the plea, fuiding, or sentence; or some mere clerical error in a 
matter of form — the court may and in general properly wdl be recon- 
vened by the order of the reviewing officer (the convening authority or 
his successor in the command) for the purpose of correcting the record 
in the faulty particular, provided a correction be practicable. In a 
case of an omission, the object of course is that the record may be 
made to conform with i\\efact. If the fact is that the proceeding, 
apparently merely omitted to be recorded, was actually not had, the 
proposed correction can not of course be made. There is no limit to 
the number of times that a court may be reconvened for a revision of 
its proceedings. It is not often, however, reassembled a second time 
where it decUnes on the fn-st occasion to make the correction desired. 
R. 1, 487, Dec, 1862; 2, 154, ^pr., 1863; 11, 490, Feb., 1865; 16, 
202, May, 1865; 28, 286, Dec, 1868, and 304, Jan., 1869; C. 15833, 
Jan. 28, 1904. 

IX N 2. The order reassembling the court will properly indicate 
the particular or particulars as to which a revision or correction is 
desired, or refer to papers, accompanying it, in which the supposed 
omission or other defect is set forth. R. 11, 93, Nov. 1864- Whether 
to make the proposed correction wUl be in the discretion of the 
court. The reviewing authority can not of course compel and would 
scarcely be authorized to command the court to make it. R. 7, 112, 
Nov., 1863; 24, 435, Sept., 1873. 

IX N 3. A correction can be made only by a legal court. At least 
five therefore of the members of the court who acted upon the trial, 
must be present. That there are fewer members at the reassembling 
than at the trial is inmiaterial, provided five are present. R. 35, 
656, Oct., 1874- The judge advocate should be present.^ R. 1, 487, 
Dec, 1862. 

' Brown v. Root, cited supra. 

*If the court closes he should withdraw (act of July 27. 1892, s. 2). 



DISCIPLINE IX iSr 4. 523 

IX N 4. It is not in general necessary or desirable that the accused 
be present at a revision. Where, however, any possible injustice may 
result fi'om his absence, he should be required or permitted to be 

E resent, and with counsel, if prefeiTed. Thus, where the defect to 
e coiTected consists in an omission properly to set forth a special 
Elea made or objection taken by the accused, it may be desu'able that 
e should be present in order that he may be heard as to the proper 
form of the proposed correction. Where the error is clerical merely, 
or, though relating to a material particular, consists in the omission 
of a formal statement only, the presence of the accused is not in 
general called for. R. 9, 653, Sept., I864. 

IX N 5. It is now settled in our law that a court martial is not 
empowered, at this proceeding, to take or receive testunonv.^ R. 
16, 562, Sept., 1865; 19, 4I, Oct, 1865; 42, 275, Apr., 1879. 

IX N 6. The amendment can only be made by the court when 
duly reconvened for the purpose, raid when mad^ must be the act of 
the court as such. A correction made by the president or other mem- 
ber, or by the judge advocate, independently of the court, and by 
means of an erasure or interlmeation or otherwise, is unauthorized 
and a grave irregularity.^ R. 28, 304, J(in., 1869. The correction 
must be wholly made and recorded in and by the formal proceedings 
upon the revision. The record of the correction, as thus made, wiU 
refer of course to the page or part of the record of the trial in which 
the omission or defect occurs; but this part of the record must be 
left precisely as it stands. The court is no more authorized to correct 
the same by erasure or interlineation on the page, or by the substi- 
tution, for the defective portion of a rewTitten corrected statement, 
than would be the judge advocate or a member. R. 2, 97, Mar., 
1863; 11, 93, Nov., 1864; 16, 202, May, 1865; 34, 4I6, Aug., 1873; 
45, 439, Sept., 1882. ^ . 

IX N 6 a. The revision here contemplated is of course quite dis- 
tinct from the ordinary revision and correction of its proceedings by 
a court martial from day to day durmg a trial and befora the record 
is completed. R. 27, 581, Mar., 1869. 

IX N 6 b. Held, that an indorsement by the trial judge advocate 
can not be received in place of a regular amendment of the record by 
the court. C. 4642, Aug. 4, 1898 

IX N 7. Wliere the court has been dissolved, or, by reason of any 
casualty or exigency of the service, can not practically be reconvened, 
there can of course be no correction of its proceedmgs. R. 31, 108, 
Dec, 1870; C. 19854, June 29, 1906. 

IX O. A court martial is not legally dissolved till officially 
informed of an order, from competent authority, dissolvmg it. The 
proceedings of a court martial, had after the date of an order dis- 
solving it but before the court has become officially advised of such 
order, will thus be quite regular and valid. Where an order dis- 
solving forthwith a court martial has been duly officially received 
by the court and bas thus taken eft'ect, an order subsequently received 
revoking this order wiU be entirely futile. It wiU not revive the 
court, but the same, to be qualified for further action, must be 
formally reconvened as a new and distinct tribunal. R. 43, 160, 
Jan., 1880; P. 32, 29, Apr., 1889. 

• See G. O. 47. Hdqrs. of Army, 1879. 
2 See par. 19, S. O. 99, A. G. O., 1900. 



524 DISCIPLINE X A 1. 

X A 1. Desertion is not a felony and does not render a witness 
incompetent at common law or before a court-martial. Nor does the 
loss of citizenship upon conviction of desertion, under sections 1996 
and 1998, R. S., have such effect; the competency of a witness not 
depending upon citizenship. A pardon of a person thus convicted 
would not therefore add to his competency. But where it was pro- 
posed to introduce such a person as a material witness for the prosecu- 
tion in an important case, advised that it would be desirable to remit 
the unexecuted portion of his sentence, if any. R. 51,254, Dec, 1886. 

X A 2. The president or any member of a court-martial, as also the 
judge advocate, may legally give testimony before the court. That 
the court, at the time of a member's testifying, is composed of but 
five members will not affect the validity of the proceedings, since in 
so testifying he does not cease to be a member. It is in general, 
however, most undesirable that the judge advocate, and still more 
that a member, should appear in the capacity of a witness, except 
perhaps where the evidence to be given relates simply to the good 
character or record of the accused. R. 2, 584, June, 1863; 7, 202, 
Feb., 1864; H, 299, Dec, 1864; A2, 472, Jan., 1880. 

X A3. It is not an objection to the competency of a witness that he 
is the officer upon whom will devolve the duty of reviewing authority 
when the proceedings are terminated. R. 39, 518, Apr., 1878. 

X A 4. It is not an objection to the competency of a witness that his 
name is not on the list of witnesses appended to the charges when 
served. The prosecutor is not obliged to furnish any list of witnesses, 
but it is better practice to do so.^ R. 25, 350, Feh., 1868. 

X A 5. Wliere a court-martial refused to admit in evidence (as being 
incompetent) the testimony of the wife of the prosecuting witness, 
lield that its action was entirely erroneous, no legal objection existing 
to the competency of such a person. R. 43, 106, Dec, 1879; C. 17946, 
May 3, 1905; 18100, June 5, 1905. 

X B 1. It has been uniformly held that the wife of a person on trial 
before a court-martial could not properly be admitted as a witness for 
or against him;^ and the statute authorizing accused parties to testify 
does not affect this rule. R., 30, 672, Oct., 1870; 47, 521, Sept., 1884- 

X B 1 a. A wife is not a competent witness to prove a charge of 
failing to support her, for which her husband is on trial.^ R. 47, 521, 
Sept., 1884. 

X B 2. A person who is insane at the time is incompetent as a wit- 
ness. An objection, however, to a witness on account of alleged 
insanity wiU not properly be allowed, unless sustained by clear proof, 
a man being always presumed to be sane till proven to be otherwise. 
R. 33, 91, June, 1872. 

1 When the list is furnished, the prosecution is not obliged to confine itself to the 
witnesses specified. The fact that material testimony is given by an unexpected 
witness may however constitute ground for an application by the accused (under 
art. 93) for further time for the preparation of his defense. 

2 Nor will the testimony of the wife of an accused be admissible in favor of or against 
a party jointly charged with him, where her testimony will be material to the merits 
of the question of the guilt or innocence of her husband . See Territory v. Paul, 2 Mont . 
314. 

^The common law rule is that, except in the case of violence upon her person, the 
wife's testimony can not be received to criminate her husband, or to disclose confiden- 
tial communications. Bassett D. U. S. (137 U. S., 496); JnreMayfield (141 U. S., 113); 
Hopkins v. Grimshaw (165 U. S., 349); Stein v. Bowman (13 Peters., 209). 



DISCIPLINE X B 3. 525 

X B 3. Where a conviction of rape rested mainly on the testimony 
of the victim, a child of 8 years of age, lield. that the competency of 
the witness was doubtful, and that the trial should have been sus- 
suspended and the child instructed.^ R. 50, 37, Feb., 1886. 

X C 1 . The rules governing the competency of witnesses before 
the criminal courts of the United States and the States are, where 
apposite, generally (though not always necessarily) followed in the 
practice of courts-martial. R. 29, 180, Dec, 1869; 30, 672. Oct. . 1870; 
42, 7 J^, Dec, 1878. 

X D. Except where their testimony will be merely cumulative, 
and will clearly add nothing whatever to the strength of the defense 
the accused is in general entitled to have any and all material wit- 
nesses summoned to testify in his behalf.- A prompt obedience to a 
summons is incumbent upon aU witnesses, nor is a commanding or 
superior officer in general authorized to place any obstacles in the 
way of the prompt attendance, as a witness, of an inferior dvily sum- 
moned or ordered to attend as such.^ R. 33, 100, June, 1872; 43, 341 , 
June, 1880; C. 17212, Fel. 17, 1905; 17666, Mar. 13, 1905. 

X I) 1. An accused party at a militaiy trial can rarely be entitled 
to demand the attendance, as a witness, of a chief of a staff corps, 
much less that of the President or Secretary of War, especially as 
some minor official can almost invariably furnish the desired facts. 
If, however, the testunony of one of these officials be found to be 
necessar;^^ or most desirable, and the same can not legally be taken 
by deposition, the court, if convened at a distance, may properly be 
adjourned to WasMngton or other convenient pomt, m order that 
the witness maj^ be enabled to attend without detriment to the 
public interests. R. 39, 517, Apr., 1878. 

X E. By deposition. (See Ninety-first article of war.) 

X F 1. A summons may legally be served either by a military or a 
civil person,* but will in general preferably be servea by an officer or 
noncommissioned officer of the Army. A judge advocate, or a com- 
manding or other officer to whom a summons is sent for service, will 
not be authorized, by employing for the purpose a United States 
marshal or deputy marshal, or other civil official, to commit the United 
States to the payment of fees to such official. R. 43, 284, Apr., 1880. 
The action, however, of a judge advocate in employing a deputy 
marshal to serve a summons, where apparently the service could not 
otherwise be so effectually or economically made, has in a few cases 
been so far ratified by the Secretary of War as to allow, out of the 
appropriation for Army contingencies, the payment of a small and 
reasonable account of charges rendered by such official. R. 37, 570, 
May, 1876. 

X F 2. There is no fee or compensation established or authorized 
to be paid, by statute or regulation, for the service of subpoenas, for 
the attendance of witnesses before military courts. Neither a com- 
manding officer nor a iudge advocate is authorized to employ a civil 
official or any civilian for such service or to commit the United States 
to the payment of any compensation to such a person. But in a case 
where the employment of a civilian for such purpose had been resorted 

' Greenleaf on Evidence, sec. 367. 

■^ See G. C. M. O. 21, 24, War Dept. 1872; do. 128, Hdqrs. of Army, 1876. 

3 See G. C. M. O. 18, Dept. of the Platte, 1877. 

* See G. 0. 93, Hdqra. of Army, 1868. 



526 DISCIPLINE X F 3. 

to, and it clearly appeared that, to employ him, was the most eco- 
nomical as well as enectiial course open to the officer, advised that his 
reasonable compensation be paid out of the appropriation for con- 
tingencies of the Army. P. 32, 365, May, 1889: 51, Jfil , Jan., 1892; 
G. 55J^9, Dec, 1898; 13418, Oct. 9, 1902. 

X F 3. Subpoenas for witnesses residing in foreign territory should 
be transmitted through the Department of State for service. C. 
1307^6, Aug. 7, 1902. 

X G 1 . A witness can have no authority to discharge or relieve 
himself from attendance on the ground that the testimony desired of 
him is immaterial, or for any other reason. In the civil practice such 
an act would be a grave contempt of court. It is for the court to 
judge as to the materiality or pertmency of the evidence of witnesses; 
and unless a witness has been determined by the court to be incom- 
petent or his testimony to be inadmissible, he should remain and stand 
his examination till duly informed by the court or judge advocate 
that his attendance is no longer required in the case. R. 39, 354, 
Dec, 1877. 

X H 1. The privilege, recognized by the common law, of a witness 
to refuse to respond to a question, the answer to which may criminate 
him, is a 'personal one, which the witness may exercise or waive as he 
may see fit. It is not for the judge advocate or accused to object to 
the question or to check the witness, or the court to exclude the ques- 
tion or direct the witness not to answer. Where, however, he is igno- 
rant of his right, the court may property advise him of the same. R. 
11, 220, Dec, I864. But where a military witness declines to answer 
a question on the ground that it is of such a character that the answer 
thereto may criminate him, but the court decides that the question is 
not one of this nature and that it must be answered, tlie witness can 
not properly further refuse to respond, and, if he does so, will render 
himself liable to charges and trial under article 62.^ R. 34, 242, Apr., 
1873. 

X H 1 a. Upon the trial of a cadet of the MiUtaiy Academy, the 
court, against the objection of the accused, required another cadet, 
introduced as a witness for the prosecution, to testify as to facts which 
would tend to criminate him. Held that such action was erroneous, 
the not answering in such cases being a privilege of the witness only,^ 
who (whether or not objection were made) could refuse to testify, and 
who, if ignorant of his rights, should be instructed therein by the 
court. P. 38, 194, Jan., 1890. 

X H 2. The ninetieth article of war charges the judge advocate of 
a court-martial with the duty of objecting, during the progress of a 
trial, "to any question to the prisoner the answer to which might tend 
to criminate himseK." Held that to ' ' compel" is to constrain a witness, 
by force or duress, to give incriminating testimony under the sanction 
of an oath, or otherwise, but no such case arises where, in the execu- 
tion of the physical examination imposed by a competent military 
superior, a medical officer becomes possessed of information in respect 
to the person of an enlisted man ; and he may testify to any facts that 
have come under his observation in the course of such physical exam- 
ination. C. 24624, Mar. 13, 1909. 

1 See G. C. M. 0. 23, War Dept., 1873; also Brown v. Walker, 161 U. S., 591. 
^ That the accused can not take advantage of the error, see Greenleaf on Evidence, 
16th edition, vol. 1, sec. 469 d, p. 613. 



DISCIPLINE XII. 527 

X I 1. To entitle a witness to the payment of fees, it is not abso- 
lutely essential that he should produce a formal summons or subpoena 
addressed to and complied with by him, or that he should have been 
formally summoned in the case. It will in general be sufficient if he 
has duly attended in compliance with a verbal or informal written 
request from the judge advocate, or even at the instance of the accused, 
if this action has been acquiesced in by the judge advocate.^ But a 
party can not entitle himself to wdtness fees by merely appearing in 
court on his own responsibility and not at the instance of eitner party. 
R. £3, 196, Aug., 1866; C. 7890, Apr., 1900; 15789, Jan. 19, 1904. 

X I 2. Where a party who had attended as a witness before a mili- 
tary court, claimed, in addition to the regular per diem compensation, 
to be indemnified for the loss of time and injury to his business alleged 
to have been occasioned b}^ reason of his being obliged to attend as 
such witness ; held that such claim could not be allowed by the execu- 
tive branch of the Government, the loss and injury complained of 
being disadvantages to which citizens were liable to be subjected in 
the course of the discharge of their obligations to civil society, and for 
which the law has provided no remed3^ R. 22, 264, July, 1866. 

X I 3. The compensation allowed by the Secretary of War for 
witnesses summoned as experts in handwriting before courts-martial, 
held paj^able out of the annual appropriation ''for compensation of 
witnesses attending upon courts-martial and courts of inquir}^" ^ P. 
49, 187, Sept., 1891; C. 16556, July 7, 1904, and Apr. 20, 1911. 

X I 4. When giving evidence by deposition. {See Ninety -first arti- 
cle of war.) 

X I 5. Held that the annual appropriation by Congress for the com- 
pensation of witnesses attending before courts-martial was evidently 
based upon the understanding that such compensation, not being 
prescribed by statute, was one left to be fixed by the Secretary of 
War (the authority chargefl with the expenditure of the appropria- 
tion), and was indeed that which had been so fixed and pubhshed in 
Army Regulations. Thus the appropriation, made as it is from year 
to year, is to be regarded as made in knowledge and recognition of 
the rates of compensation as established by such regulations. Sec- 
tion 848, R. S., prescribing witness' fees, and constituting a part of 
the chapter entitled ''The Judiciary," has reference to such fees in 
the Federal civil courts only, and has no application whatever to 
courts-martial, which are no part of the judiciary of the United States. 
P. 57, 490, Feb., 1893. 

X 1 6. Fees to foreign civilian witnesses before courts-martial are the 
same as those allowed by United States courts at the place of trial.^ 
C. 13046, Aug. 6, 1902. 

X I 7. Where the voucher of a witness has been lost, a new voucher 
may be issued by the judge advocate upon a satisfactory^ showing of 
such loss, supported by affidavit. The new voucher should be so 

' A strict observance, however, of the Army Regulations would call for the issue of 
formal summonses or subpoenas to the Mdtnesses on both sides, and it is the better 
practice for the judge advocate to cause such to be served in each instance, particu- 
larly in the case of civilian witnesses. 

2 See Smith v. U. S., 24 Ct. Cls., 209. Cir. 30, War Department, July 18, 1904, 
requires that when the necessity for the employment of an expert arises, such neces- 
sity must be shown by a resolution of the court, and the authority of the Secretary of 
War must be secured in advance. 

« See act of Mar. 2, 1901 (31 Stat., 950); I Comp. Dec. 79. 



528 DISCIPLINE X I 8. 

noted as to indicate its character, and should be forwarded to the 
Paymaster General for settlement. C. 21516, May 8, 1907. 

X I 8. Policemen of the District of Columbia are "civilians in the 
employ of the Government " in the sense contemplated by (paragraph) 
(1006,) Army Regulations (1910). C. 17481, Feb. 1, 1904. 

XI 9. A postmaster is a ''civilian in the employ of the Govern- 
ment" in the sense contemplated bv paragraph 1006, Army Regula- 
tions (1910). a 17481, Mar. 10, 1910. 

XK 1. To authorize a resort to an attachment there must have 
been a formal summons, duly issued and served upon the witness, 
and not complied with. R. 36, 152, Dec, 1874. 

X K 2. Held that the statute could not properly be construed as 
authorizing the issue of an attachment to compel a witness to attend 
before a commissioner or other person and give his dejyosition. R. 36, 
152, Dec, 1874. 

X K 3. A judge advocate can not properly direct an attachment to 
a United States marshal or deputy marshal, or other civil official. 
Some military officer or person should be designated by him, or 
detailed for the purpose by superior authority.^ R. 27, 147, Aug., 
1868. In executmg the attachment, the needful force may be em- 
ployed. R. 11,234, Dec, 1864. 

X L 1 . The principle of the common law by which a witness is pro- 
tected from arrest^ should in general be applied to military cases. If 
it can well be avoided, an arrest should certainly not be imposed upon 
an officer or soldier wliQe attending a court-martial as a witness. But 
such an arrest would constitute an irregularity only, and would not 
affect the validity of the proceedings of a trial to which the party thus 
arrested was subsequently subjected. R. 39, 12, May, 1876. 

XI A 1. Courts-martial should in general, of course, follow — so 
far as apposite to military cases — the rules of evidence observed 
by the civil courts, and especially the courts of the United States, in 
criminal cases. ^ They are not bound, however, by any statute in this 

^ Upon the subject of the execution of process of attachment in military cases, see 
the opinion of the Atty. Gen. in 12 Op., 501; also the directions — based upon the 
same— in G. 0. 93, Hdqrs. of Army, 1868. 

Prior to the adoption of the Constitution, Congress (then the Government) appears 
to have relied upon the State authorities for the necessary process to compel the 
attendance of witnesses before military courts. See resolution of Nov. 16, 1779 — III 
Journals of Congress, 392. In the British law, by a provision first incorporated in 
the mutiny act in the year 1800, witnesses neglecting to comply witha summons 
requiring their presence at such courts, are made "liable to be attached in the Court 
of Queen's Bench," etc. This provision well illustrates the close connection between 
executiv-e and the other governmental powers in the British constitution, where the 
sovereign is a part of the judiciary as well as of the legislature. The fact of the express 
distinction and separation of the three powers in our own organic law, one result of 
which has been to leave courts-martial, as agencies of the executive power, quite 
independent of any review or contpol on the part of the United States coiu-ts, has also 
no doubt availed to preclude the devolving upon the Federal tribunals of a power, 
fitly conferred in the foreign statute, but which, with us, would be exceptional and 
out of harmony with our constitutional system. 

It may be added, in regard to the exercise of the authority to issue compulsory 
process, as vested in judge advocates by the act of 1863 (sec. 1202, R. S.),_that the 
occasions of such exercise have not been frequent in practice, and no case is known 
in which such authority has been abused. 

2 1 Greenl. Ev., sec. 316; Smythe,i;. Banks, 4 Dallas, 329. 

^ See 3 Greenl. Ev., sec. 476; Lebanon v. Heath, 47 N. Hamp., 359; People v. Van 
Allen, 55 N. York, 39; 2 Op. At. Gen., 343, 17 id., 310; Grant v. Gould, 2 H. Black, 87; 
1 McArthur, 47; McNaghten, 180; Harcourt, 76; DeHart, 334; O'Brien, 169; G. O. 51, 
Middle Dept., 1865; G. C. M. O. 60, Dept. of Texas, 1879; do. 3, 52, Dept. of the 
East, 1880. 



DISCIPLINE XI A 2. 529 

particular, and it is thus open to them, in the interest of justice, to 
apply these rules with more indulgence than the civil courts — to 
allow, for example, more latitude in the introduction of testimony 
and in the examination and cross-examination of witnesses than is 
commonly permitted by the latter tribunals. In such particvilars, as 
persons on trial by courts-martial are ordinarily not versed in legal 
science or practice, a liberal course should in general be pursued, and 
an overtechnicality be avoided. ^ R. 29, 480, Dec, 1869; 31, 273, 
Mar., 1871; 42, 74, Dec, 1878; 55, 497, Mar., 1888; G. 8471, June, 
1900. 

XI A 2. The law presumes that pubHc officers duly perform their 
official functions, and tliis presumption continues till the contrary 
is shown. P. 42, 246, Aug., 1890. 

XI A 3. The rules of evidence should be apphed by mihtary courts 
irrespective of the rank of the person to be affected. Thus a witness 
for the prosecution, whatever be his rank or office, may always be 
asked on cross-examination, whether he has not expressed animosity 
toward the accused, as well as whether he has not on a previous 
occasion made a statement contradictory to or materially different 
from that embraced in his testimony. Such questions are admissible 
by the established law of evidence and imply no disrespect to the 
witness nor can the witness properly dechne to answer them on the 
ground that it is disrespectful to liim thus to attempt to discredit him.^ 
R:32, 642, May, 1872; 4I, 33, Oct., 1877. 

XI A 4 a. Where a soldier charged with desertion pleads guilty of 
absence without leave but not guilty of desertion; held, that the 
operation of such a plea is to cast upon the judge advocate the burden 
or proving the animus non reverteridi, which is the gist of the offense 
of desertion. Wliile the circumstance that the absence has been 
exceptionally protracted will, when unexplained, ordinarily furnish 
a presumption of the existence of the necessary intent, the court will 
not be justffied in arriving at a finding of guilty upon the plea of the 
accused where the plea amounts to a traverse of the charge, and 
practice requires that evidence be introduced, although it be of 
necessity slight, to enable the court to correctly arrive at such a fold- 
ing. G. 17313, Dec 23, 1904. 

XI A 5. Official communications between the heads of the depart- 
ments of the Government and their subordinate officers are privileged. 
Were it other%vise it would be impossible for such superiors to admin- 
ister effectually the pubhc affairs with which they are intrusted. P . 52, 
344, Mar., 1892. 

XI A 6 a. The fact that a party is a pubhc enemy of the United 
States or has engaged in giving aid to the enemy does not affect the 
competency of his testimony as a witness before a court-martial. 
Wliere testifying, however, in time of war, either in favor of a person 
in the enemy's service or an ally of or sympathizer with the enemy, 
or against a Federal officer or soldier, liis statements (like those of an 
accomplice) are ordinarily to be received with caution unless corro- 

' Compare the views expressed in G. C. M. 0. 32, War Dept., 1872; do. 23, Dept. of 
Texas, 1873; do. 60, Dept. of California, 1873. 

^See opinion of the Judge Advocate General, as adopted by the President, in G. C. 
M. O. 66, Hdqrs. of Army, 1879; and compare remarks of reviewing officers, in G. 
0. 11, Dept. of Cahfornia, 1865; G. C. M. 0. 31, Dept. of Dakota, 1869; do. 8, Fourth 
Mil. Dist., 1867. 

93673°— 17 34 



530 DISCIPLINE XI A 7 a. 

borated. R. 9, 164 and 173, June, 1864; iO, 330, Sept., 1864; 13, 499, 
Mar., 1864; U, 645, June, 1865; 20, 86, Oct., 1865; 21, 54, Nov., 1865. 

XI A 7 a. A confession is competent evidence when free and 
voluntary; otherwise where made through the influence of fear or hope 
of favor.* So a confession that he had deserted, made by an alleged 
deserter to a pohce officer, who, on arresting him, assured him that if 
he told the truth he (the officer) would give him an opportunity to 
escape before being delivered up to the military authorities — held 
clearly not admissible in evidence as having been induced by promise 
of favor on the part of a person in authority. R. 55, 217, Dec, 1887; 
C. 25937, Dec. 14, 1909. 

XI A 7 b. Where a soldier charged with desertion voluntarily con- 
fesses that he has been absent without authority such confession may 
be used in evidence at his trial ; held, that before the admission of the 
confession the corpus delicti must be proved. In a case of desertion 
the corpus is the unauthorized absence, the intent, which makes the 
diiference between absence without leave as an offense and desertion, 
is a matter of opinion for the court to determine after considering all 
the evidence attainable. 0. 1.7635, Mar. 7, 1905. 

XI A 8. Upon a trial where the offense is drunkenness or drunken 
conduct charged under article 62, or drunkenness on duty charged 
under article 38, it is not essential to confine the testimony to a 
description of the conduct and demeanor of the accused, but it is 
admissible to ask a witness directly if the accused ''was drunk," 
or for a witness to state that the accused ''was drunk," on the occasion 
or under the circumstances charged. Such a statement is not viewed 
by the authorities as of the class of expressions of opinion which are 
properly ruled out on objection unless given by experts, but as a mere 
statement of a matter of observation, palpable to persons in general, 
and so, proper to be given by any witness as Sifact in his knowledge.^ 
R. 22, 635, Mar., 1867; 24, 79, Dec, 1876; 56, 165, May, 1888. 

XI A 8 a. While drunkenness is no excuse for crime,^ and one who 
becomes voluntarily drunk is criminally responsible for all offenses 
committed by him while in such condition, yet the fact of the exist- 
ence of drunkenness may be proper evidence to determine the ques- 

' United States v. Pumphreys, 1 Cranch C. C, 74; United States v. Hunter, id., 
317; United States v. Charles, 2 id., 76; United States v. Pocklington, id., 293; United 
States V. Nott, 1 McLean, 499;.United States v. Cooper, 3 Qu. L. J., 42. 

If an officer were to admit to a superior, in writing, the commission of a military 
oflfense and promise not to repeat the same, under the well-founded hope and belief 
that a charge which had been preferred against him therefor would be withdrawn, 
the admission thus made, in case he were actually brought to trial upon such charge, 
would not properly be received in evidence against his objection. Confessions made 
by private soldiers to officers or noncommissioned officers, though not shown to have 
been made under the influence of promise or threat, should yet, in view of the mili- 
tary relations of the parties, be received with caution. See G. C. M. 0. 3, War Dept., 
1876; G. O. 54, Dept. of Dakota, 1867. And compare Cady v. State, 44 Miss., 332. 

Mere silence on the part of an accused, when questioned as to his supposed offense, 
is not to be treated as a confession. See Campbell v. State, 55 Ala., 80. 

2 People V. Eastwood, 14 N. York, 562; Stacy v. Portland Pub. Co., 68 Maine, 279; 
Sydleman v. Beckwith, 43 Conn., 12; State v. Huxford, 47 Iowa, 16; G. 0. 42, Dept. 
of the Platte, 1871. Lawson on ex]3ert and opinion evidence, p. 473 et seq. 

' Coke, in laying down the doctrine, now general, that drunkenness does not exten- 
uate but rather aggravates the offense actually committed, says: "It is a great offense 
in itself." Beverly's case, 4 Coke, 123 b. So "The law will not suffer any man to 
privilege one crime by another. " Blackstone Com., v. 4, p. 26. "The vices of men 
can not constitute an excuse for their crimes. " Story, J., in United States v. Cornell, 
2Ma8on, 91, 111. 



DISCIPLINE XI A 9. 531 

tion of the species or grade of crime actually committed, especially 
where the point to be decided is whether the accused was actuated 
by a certain specific intent. Thus the fact and measure of the drunk- 
enness of the accused may properly be considered by the court as 
affecting the question of the existence of an animus furandi in a case 
of alleged larceny.^ R. 23, 222, Aug., 1866; 30, 337, May, 1870; C. 
16402, May 31, 1904. 

XI A 9. It is a well settled rule of the common law that to sustain 
the charge of perjury the evidence of two witnesses or of one witness 
with strong corroborating circumstances is necessary to prove the 
falsity of the statements to which a witness has testified. R. 12, 
631, Sejyt., 1865. 

XI A 9 a. Under this charge testimony wiiich consists of answers 
to questions going to the credit of a particular witness or of other 
witnesses whom he corroborated is "material to the issue." P. 36, 
359, Nov., 1889; 54, 316, July, 1892. 

XI A 10, Where a witness for the prosecution was permitted by a 
court-martial to temporarily suspend his testimony and leave the 
court room for the purpose of refreshing his memory as to certain 
dates, held that such action was irregular and the further testimony 
of the witness as to such dates inadmissible. By the course pursued 
the court and accused were prevented from knowing by what means 
the memory of the witness had been refreshed — whether, for instance, 
it may not have been refreshed by oral statements of some person or 
persons. P. 24, 284, May, 1888. 

XI A 11. Evidence of the good character, record, and services of 
the accused as an officer or soldier is admissible in all military cases 
without distinction — in cases where the sentence is mandatory as 
well as those where it is discretionary — upon conviction. For, where 
such evidence can not avail to affect the measure of punishment, it 
may yet form the basis of a recommendation by the members of the 
court, or induce favorable action by the reviewing ofhcer whose 
approval is necessary to the execution of the sentence. R. 19, 35, 
Oct., 1865; 36, 446, 471, May, 1875. Where such evidence is intro- 
duced, the prosecution may offer counter testimony, but it is an 
established rule of evidence that the prosecution can not attack the 
character of the accused until the latter has introduced evidence to 
sustain it, and has thus put it in issue.^ R. 28, 593, May, 1869. 

' Rex V. Pitman, 2 C. & P., 423; 1 Bish. Cr. L., sec. 490. So in fact the drunkenness 
has been held admissible in evidence in cases of homicide upon the question of the 
existence of malice as distinguishing murder from manslaughter; as also upon the 
question of deliberate intent to kill in States where the law distinguishes degrees of 
murder. State v. Johnson, 40 Conn., 136, and 41 id., 588; People v. Rogers, 18 N. 
York, 9; People v. Ham mill, 2 Parker, 223; People v. Robinson, id., 235; State v. 
McCants, 1 Spears, 384; Kelly v. State, 3 Sm. & M., 518; Shannahan v. Common- 
wealth, 8 Bush., 463; Swan v. State, 4 Humph., 136; Pirtle v. State, 9 id., 663' Haile 
V. State, 11 id., 154; People v. Belencia, 21 Cal., 544; People v. King, 27 id., 509; 
Peoples;. Williams, 43 id., 344; 3 Greenl. Ev., sees. 6, 148; 1 Bish. Cr. L., sees. 492, 493. 

^ In commencing the examination of a witness it is a leading of the witness and 
objectionable to read to him the charge and specification or specifications since he 
is thus instructed as to the particulars in regard to which he is to testify and which 
he is expected to substantiate. So, to read or state to him in substance the charge 
and ask him ' ' what he knows about it, " or in terms to that effect, is loose and 
objectionable, as encouraging irrelevant and hearsay testimony. The witness should 
simply be asked to state what was said and done on the occasion, etc. A witness 
should properly also be examined on specific interrogatories and not be called upon 
to make a general statement in answer to a single general question. Compare General 



532 DISCIPLINE XI A 11 a. 

XI A 11 a. Without regard to any action of tlie defense, the judge 
advocate may, with the consent of the court, introduce evidence as 
to the sanity of the accused for the purpose of removing any doubt 
on that subject that may exist in the mind of any member of the 
court. Heldj however, that in the absence of such doubt by any 
member of the court he need not introduce such evidence.^ C. 2994, 
Aug. SO, 1897. 

XI A 12. At the trial, in 1894, of an officer charged with a disorder 
and breach of discipline which involved the killing by him of another 
officer, there was offered in evidence, on the ipart of the accused, to 
exliibit the character and disposition of the officer killed, a copy of a 
general court-martial order of 1872, setting forth certain charges 
alleging dishonest and unbecoming conduct, upon which the latter 
officer was then tried and convicted, and the findings of the court 
thereon. Held, that such evidence was wholly inadmissible for the 
purpose designed. P. 65, 270, June, 1894. 

XI A 13. Except by the consent of the opposite party, the testi- 
mony contained in the record of a previous trial of the same or a 
similar case can not properly be received in evidence ori a trial by 
court-martial; nor can the record of a board of investigation ordered 
in the same case be so admitted without such consent. In all cases 
(other than that provided for by the one hundred and twenty-first 
article of war) testimony given upon a previous hearing, if desired 
to be introduced in evidence upon a trial, must (unless it be otherwise 
specially stipulated between the parties) be offered de novo and as 
original matter. R. 19, 41, 1865; 27, 318, Oct., 1868. 

XI A 14 a. It is in general competent, on trials by court-martial, 
for the accused to put in evidence any facts going to extenuate the 
offense and reduce the punishment, as the fact that he has been held 
in arrest or confinement an unusual period before trial; the fact that 
he has already been subjected to punishment or special discipline on 
account of his offense; the fact that his act was m a measure sanc- 
tioned by the act or practice of superior authority, etc. R. 28, 104, 
Aug., 1868. 

XI A 14 b. The testimony of an accused party is competent only 
when presented as authorized by the act of March 16, 1878, c. 37, viz, 
when the party himself requests to be admitted to testify ._ Such 
testimony is not excepted from the ordinary rules governing the 
admissibility of evidence, nor from the application of the usual tests 

Orders 12, Department of the Missouri, 1862; General Orders 36, id., 1863; General 
Orders 29, Department of California, 1865; General Orders 67, Department of the 
South, 1874; General Court-Martial Orders 14, 24, Department of Dakota, 1877. 

1 U. S. iJ. Davis, 160 U. S., 469, 492, where the Supreme Court of the United States 
quoted with approval the following from the Supreme Court of the District of Columbia: 
" The principle is accurately stated by Mr. Justice Cox, of the Supreme Court of the 
District of Columbia as follows: 'The crime, then, involves three elements, viz, the 
killing, malice, and a responsible mind in the murderer. But after all the evidence 
is in, if the jury, while bearing in mind both these presumptions that I have men- 
tioned — i. e., that the defendant is innocent until he is proved guilty, and that he is 
and was sane, unless evidence to the contrary appears — and considering the whole 
evidence in the case, still entertain what is called a reasonable doubt, on any ground 
(either as to the killing or the responsible condition of mind), whether he is guilty of 
the crime of murder, as it has been explained and defined, then the rule is that the 
defendant is entitled to the benefit of that doubt and to an acquittal.' Guiteau's 
case, 10 Fed. Rep., 161, 163," , 



DISCIPLINE XI A 14 b (l). 533 

of cross-examination, rebuttal, etc.^ But an accused so testifying 
can not be compelled against his objection to testify or criminate 
himself as to an offense in respect to which he has not testified.^ 
C. U95, July, 1895. 

XI A 14 b (1). As the accused is not required to testify and need 
not go on the stand at all, Jield, that he must, if he takes the stand, 
testify to all facts mtliin his knowledge relevant to the case under 
the rules of evidence, as would any witness in the case.^ C. 18006, 
May 16, 1905; 18764, Nov. 9, 1910. 

On objection the accused can not be compelled on cross-examination 
to testify to matters not brought out on the direct examination.* 
C. U95, July 6, 1895. 

XI A 15. The weight of evidence does not depend upon the number 
of the witnesses. A single witness, whose statements, maimer, and 
appearance on the stand are such as to commend liini to credit and 
confidence, will sometimes properly outweigh several less acceptable 
and satisfactory witnesses.^ H. 35, 55, Bee, 1873. 

XI A 16. It IS an important part of the judgment of the court, in 
a case where the evidence is corfflicting, to determine the measure of 
the credibility to be attached to the several wdtnesses. In its finding, 
therefore, the court may, in connection with the testimony, properly 
take into consideration the appearance and deportment of the wit- 
nesses on the stand and their manner of testifying, especially when 
under cross-examination.^ R. 30, 383, 4^7 , May and June, 1870. 

XI A 17 a (1). Muster-in roUs are primary evidence of the dates 
of muster in as muster-out roUs are of the dates of muster out. It 
is not the primary object of either muster-and-pay rolls or muster-out 
roUs to fix the date of muster in. They can not therefore be used to 
impeach the muster in as fixed by the muster-in roll. Official records 
are of a high class of evidence as to the facts which are recorded in 
them pursuant to the special objects for which they are kept, but 
they have not this weight as evidence mth reference to other facts 
incidentally recorded in them.' C. 9^21, Dec, 1900. 

XI A 17 a (2) (a) [1] [a]. War Department Orders of May 15, 1894, 
section XV, paragraph 2, provides that "official copies of orders and 
other papers shall be authenticated solely by an impressed seal of the 
bureau issuing the same, e. g., 'Adjutant General's office, official 
copy.'" This provision was intended and should be construed to 
apply to copies of papers to be used in the administrative business of 
the War Department and not as evidence before courts, either civil 
or military. Copies so authenticated would not be admissible as 
evidence in civil courts. They would have to be authenticated as 

1 See G. C. M. O. 8, 16, Dept. of the Platte, 1879; do. 6, id., 1880; do. 34, Dept. of 
Texas, 1879. And compare Wheelden v. Wilson, 44 Maine. 11; Marx v. People, 63 
Barb., 618; Fralich v. People, 65 id., 48; People v. McGungill, 41 Cal., 429; Clark v. 
State, 50 Ind., 514; Fitzpatrick v. U. S., 178 U. S., 304. 

^ See Wigmore on Evidence, vol. 3, sec. 2276. 

^ Ex parte Spies, 123 U. S., 180; and Jones on Evidence, sec. 748, 1608; and Doug- 
lass Military Law, 3d ed., sec. 264; and Fitzpatrick v. U. S., 178 U. S., 315. 

* Seymour v. Lumber Company, 58 Fed. Rep., 957; also Balliet v. U. S., 129 Fed. 
Rep., 689; also Jacobs v. U. S., 161 Fed. Rep., 694. 

* Compare Rudolph v. Lane, 57 Ind., 115; McCrum v Corby, 15 Kans., 117. 

® That a coiu-t can not arbitrarily disbelieve and reject from consideration the state- 
ment, duly in evidence, of a witness, not clearly shown to have perjured himself, is 
held in the case of Evans v. George, 80 111., 51. 

^ Greenleaf Ev., 16 ed., vol. 1, sees. 491, 493. Am, and Eng. Ency. of Law, 1st ed., 
vol. 20, p. 513. 



534 DISCIPLINE XI A 17 a (2) (fl) [1] [5]. 

recjuired by section 882, R. S. In some cases copies of papers for use as 
evidence before courts-martial have been authenticated in the manner 
specified in section 882, but in the majority of cases they have been 
authenticated by the official stamp of the bureau in the manner stated 
above. In the absence of objection, copies so authenticated by the 
bureau stamp would be legally admissible before courts-martial; and as 
courts-martial are not bound to follow strictly the rules of evidence 
observed by the civil courts, the Secretary of War could legally provide 
by regulation that in court-martial trials such copies would be admis- 
sible notwithstanding the objection of the accused.^ C. 84-71, June, 
1900; 59U, Ajjr. 5, 1901; 18723, Oct. 13, 1905; 16556, Dec. 29, 1908. 

XI A 17 a (2) (a) [1] [6]. The enlistment paper, the physical exami- 
nation paper, and the outline card are original writings made by officers 
in the performance of duty and are competent evidence of the facts 
recited therein. Copies, authenticated under the seal of the War 
Department, according to section 882, R. S., are equally admissible 
with the originals.2 P. 61, 218, Aug., 1893; C. 8^71, June 23, 1900. 

XI A 17 a (2) (a) [1] [c]. Copies of records of courts-martial authen- 
ticated under the seal of the War Department, as provided by section 
882, R. S., are admissible in evidence ''equally with the originals." 
R. 54, 77, July, 1887. . _ 

XI A 17 a (2) (a) [1] [d\. Held that papers which contain evidence 
of title, such as deeds, conveyances, etc., by which the United States 
holds lands, and wliich are on file in the War Department, may be 
proven by copies, as provided by section 882, R,. S. C. 784, t)ec., 
1894; 1577, July, 1895. 

XI A 17 a (2) (a) [1] [e]. The muster rolls on file in the War Depart- 
ment are official records and copies of the same, duly certified, are 
evidence of the facts originally entered therein and not compiled 
from other sources — subject of course to be rebutted by proper evi- 
dence that they are mistaken or incorrect. R. 3, 523, Aug., 1863; 
C. 17635, Mar. 7, 1905. So, though such rolls are evidence that the 
soldier was duly enhsted or mustered into the service and is therefore 
duly held as a soldier, they may be rebutted in this respect by proof 
of fraud or illegality in the enlistment or muster (on the part of the 
representative of the United States or otherwise), properly invalidat- 
ing the proceeding and entitling the soldier to a discharge.^ R. 8, 
488, May, I864. 

* In accordance with these views, the following regulation by the Secretary of War 
was published in G. O. 91, A. G. O., 1900: "Copies of any records or papers in the 
War Department or any of its bureaus, if authenticated by the impressed stamp of 
the bureau or office having custody of the originals (e. g., 'Adjutant General's office, 
official copy '), may be admitted in evidence equally with the originals thereof before 
any court-martial, court of inquiry, or in any administrative matter under the War 
Department." See G. O., 198, series 1908, War Department. 

2 Compare Evanston v. Gunn, 99 U. S., 660; Sandy White v. U. S., 164 U. S., 100. 

^ But note in this connection the ruling of the Supreme Court of Massachusetts in 
the case of Hanson v. S. Scituate, 115 Mass., 336, that an official certificate from the 
Adjutant General's office to the effect that certain facts appeared of record in that 
office but which did not purport to be a transcript from the record itself, and was 
therefore simply a personal statement, was not competent evidence of such facts. 

It was held by the United States Supreme Court m Evanston v. Gunn, 9 Otto, 660, 
that the record, made by a member of the United States Signal Corps of the state of 
the weather and the direction and velocity of the wind on a certain day, was competent 
evidence of the facts reported, as being in the nature of an official record kept by a 
public officer in the discharge of a public duty. 

But that the entries in such rolls are not proof of the commission of an offense, as 
desertion for example. 



DISCIPLINE XI A 17 a (2) (a) [1] [e] [a]. 535 

XI A 17 a (2) (a) [1] [e] [A]. Absence without leave of a soldier may 
be shown by extracts from the muster rolls, covering the period of 
absence, authenticated in the manner specified. Of course, if the 
entry be that the soldier deserted or was in desertion, the entry would 
be evidence of the fact of absence without leave — the intent being one 
for the determination of the court in the light of all the facts and 
circumstances. An extended absence without leave, shown in this 
way, was unexplained, together vnih the fact of apprehension in 
civilian clothes at a point distant from the station of the soldier's 
company, would, it is believed, justify the court in convicting the 
soldier of desertion. C. 17635, Mar. 7, 1905; 16965, Oct. 1, 1904. 

XI A 17 a (2) (a) [2]. A compiled statement is not admissible as 
evidence before courts-martial, as it is not a copy of an original record, 
but simply a statement of what is therein contained. Held that its 
authentication by the impressed stamp ''official copy" of the bureau 
or office having custody of the original would be improper.^ C 
15556, Nov. 27, 1903. 

XI A 17 a (2) (b) [1]. General orders issued from the War Depart- 
ment or Headquarters of the Army may ordinarily be proven by 
printed official copies in the usual form. The court will in general 
properly take judicial notice of the printed order as genuine and 
correct. A court-martial, however, snould not, in general, accept 
in evidence, if objected to, a printed or written special order, which 
has not been made public to the Army, without some proof of its 
genuineness and official character.^. R. 15, 216, May, 1865; C. 8471, 
Nov. 19, 1908, and Jan. 15, 1909. 

XI A 17 a (2) (b) [2]. The Morning Keport Book is an original 
writing. To properly admit extracts in evidence, the book should 
be first identified by the proper custodian, and the extracts then not 
merely read to the court by the witness, but copied and the copies, 
properly verified, attached as exhibits to the record of the court. 
P. 61, 218, Aug., 1893. 

XI A 17 a (2) (b) [3]. Copies of pay accounts (charged to have 
been duplicated) are admissable in evidence where the accused has 
b]^ his own act placed the originals beyond the reach of process, and 
fails to produce them in court on proper notice. R. 4'^, ^^9, Aug., 
1883. Similarly held, where the origmals were in the hands of a 
person who had left the United States so that they could not be 
reached, on notice to the accused to produce them or otherwise. 
R. 56, 6O4, Sept., 1888. / . . . 

XI A 17 a (2) (b) [4]. A descriptive list is but secondary evidence 
and not admissible to prove the facts recited therein. It is not a 
record of original entries, made by an officer under a duty imposed 
upon him by law or the custom of the service, but is simply a com- 
pilation of facts taken from other records. P. 61, 218, Aug., 1893; 
C. 15556, Nov. 27, 1903; 15953, Feb. 23, 1904; 16107, Mar. 27, 1905. 

» 155 Mass., 336; and Oakes v. Hill, 14 Pick., 442; and 20 Pick., 345. 

2 See par. II (G. 0. 198), series 1908: which provides that: 

"Copies of any records or papers in the War Department or any of its bureaus, 
or at the headquarters of an army, corps, division, or brigade, or of a territorial division 
or department, if authenticated by the impressed stamp of the bureau or office of 
the War Department, or of the headquarters having custody of the originals (e. g., 
' The Adjutant General's Office, official copy, ') may be admitted in evidence equally 
with the originals thereof before any military court, commission or board, or in any 
administrative matter under the War Department. " 



536 DISCIPLINE XI A 17 b (i) (a). 

XI A 17 b (1). (a). To the admission in evidence of a letter written 
and signed by the accused (of which the introduction is contested), 
proof of his handwriting is necessary. P. 61, 218, Aug., 1893. Evi- 
dence of handwriting by comparison is not admissible at common 
law except where the standard of comparison is an acknowledged 
or proved genuine writing already in evidence in the case. A writmg 
not in evidence and simply offered to be used as a standard is not 
admissible. R. J^9, 566, Dec., 1885; C. 25937, Dec. 14, 1909. 

XI A 17 b (2) (a). In view of the embarrassment which must 
generally attend the proof before a court-martial of the sending or 
receipt of telegraphic messages by means of a resort, by subpoena 
duces tecum, to the originals in possession of the telegraph company,^ 
advised that the written or printed copy,' furnished by the company 
and received by the person to whom it is addressed, should in general 
be admitted in evidence by a court-martial in the absence of circum- 
stances casting a reasonable doubt upon its genuineness or correct- 
ness. But where it is necessary to prove that a telegram which 
was not received, or the receipt of which is denied and not proven, 
was actually duly sent, the operator or proper official of the company, 
or other person cognizant of the fact of sending, should be sum- 
moned as a witness. R. 5, 458, Dec, 1863; 14, 259, Mar., 1865. 

XI A 17 c. Affidavits, taken ex parte, and not as depositions under 
article 91, are in no case admissible as evidence on a trial by court- 
martial, if objected to.^ R. 7, 113, Fel., I864. 

XI A 18. Kepeated false statements of the accused relative to 
the public moneys for which he was accountable are competent 
evidence going to sustain a charge of embezzlement under article 
60. R. 47, 475, Sept., I884. 

XII A 1. Where no evidence is introduced, the general rule is that 
the finding should conform to the plea. R. 37, 409, Mar., 1876; 38, 
188, July, 1876. 

XII A 2. The finding on the charge should be supported by the 
finding on the specification (or specifications), and the two findings 
should be consistent with each other. A finding of guilty on the 
charge would be quite inconsistent with a finding of not guilty, or 
guilty without attaching criminahty, on the specification. So, a 
finding of guilty upon a well-pleaded specification, apposite to the 
charge, followed by a finding of not guilty either of the offense 
charged or some lesser offense included in it, would be an incongru- 
ous verdict. R. 4, 275, Oct., 1863; 5, 576, Jan,., 1864; 0. 12234, 
Mar. 19, 1902. No matter how many specifications there may be, 
it requires a finding of guilty or not guilty on but one specification 
(apposite to the charge) to support a similar finding upon the charge. 
R. 9, 90, May, 1864; C. 17328, Jan. 4, 1905. 

' The subject of the extent of the authority of the courts to compel telegraph com- 
panies to produce original private telegrams for use in evidence is most fully treated 
m an essay by Henry Hitchcock, Esq., on the "Inviolability of Telegrams," pub- 
lished in the Southern Law Review for October, 1879. 

2 See G. C. M. O. 10, Hdqrs. of Army, 1879; G. O. 21, Dept. of the Missouri, 1863; 
do. 17, Dept. of Arkansas, 1866; do. 19, Third Mil. Dist., 1867; do. 49, Dept. of 
Dakota, 1871. 

As applied to military cases, it would be better to say, in lieu of the expression 
"if objected to, " "unless expressly consented to by the accused with full knowledge 
of his rights. " 



DISCIPLINE XII A 2 a. 537 

XII A 2 a. It is not competent for a court-martial to find an 
accused not guilty of the specification, and yet guilty of the charge, 
where there is but one specification. By finding him not guilty of 
the specification they acquit him of all that goes to constitute the 
offense described in the charge. Wliere the court believe that the 
accused is guilty of .the charge, but not precisely as laid in the speci- 
fication, they should find him guilty of the latter with such excep- 
tions or substitutions as may be necessary to present the facts as 
proved on the trial, and then guilty of the charge. R. 5, 576, Jan., 
1864. 

XII A 3. There should be a separate and independent finding upon 
each charge and specification, and each separate finding should cover 
the charge or specification as to wliich it is made; so that if any 
charge or specification is deemed by the court to be proved only in 
part, the finding shall show specifically what is found to be proved 
and what not. R. 5, 398, Feb., 1865; 16, 73, Apr., 1865. 

XII A 4. When the accused pleads guilty to the specification and 
not guilty to the charge, the court is called upon to pass on the ques- 
tion of whether or not the specification sustains the charge as a matter 
of law. If it so decides, it should find the accused guilty, not only 
of the specification but of the charge. P. 49, 411, Oct. 19, 1891, 
C. 11092, Aug. 16, 1901; 12177, Mar. 8, 1902; 12234, Mar. 19, 1902; 
12375, Apr. 8, 1902. 

XII A 5. It is a peculiarity of the finding at military law that a 
court-martial, where of opinion that any portion of the allegations 
in a specification is not proved, is authorized to find the accused 
guilty of a part of a specification only, excepting the remainder; or, 
in finding Inm guilty of the whole (or any part), to substitute correct 
words or allegations in the place of such as are shown by the evi- 
dence to have been inserted through error. And provided the excep- 
tions or substitutions leave the specification still appropriate to the 
charge and legally sufficient thereunder, the court may then properly 
find the accused guilty of the charge in the usual manner. R. 5, 576, 
Jan., 1864; 23, 188, Aug., 1866; C. 18764, Feb. 3, 1906; 25937, Dec. 
14, 1909. 

XII A 5 a. Familiar instances of the exercise of the authority to 
except and substitute in a finding of guilty occur in cases where, in the 
specification, the name or rank of the accused or some other person 
is erroneously designated, or there is an erroneous averment of time 
or place, or a mistaken date, or an incorrect statement as to amount, 
quantity, quality, or other particular, of funds or other property, etc. 
R. 13, 898, 402, Feb., 1865; 14, 228, Mar., 1865; 26, 435, Feb., 1868. 

XII A 5 b. In finding guilty upon a specification, to except from 
such finding the word or words which express the gravamen of 
the act as charged and found is contradictory and irregular. As, 
from a finding of guilty on a specification to a charge of fraud under 
article 60, to specially except the word "fraudulent" or ''fraudu- 
lently," while at the same time finding the accused guilty generally 
upon the charge. R. 11, 4I, 44 o^nd 81, Oct., 1864- 

XII A 6 a. The practice of making exceptions and substitutions in 
the findings is well illustrated bj^ the finding — authorized at military 
law when called for by the evidence ^ — of a lesser Icindred offense 

1 See 13 Op. Atty. Gen., 460. 



538 DISCIPLIKE XII A 6 b. 

included as a constituent element in the specific offense charged} Of this 
form of verdict the most familiar instance is the finding of guilty of 
absence without leave under a charge of desertion. A full acc^uittal of 
desertion includes, of course, an absence without leave if it is involved 
in it; but where the evidence falls short of estabUshing a desertion but 
shows an unauthorized absenting of himself by the accused, he may 
and should, be convicted of absence without leave, as his actual 
offense. In arriving at this conclusion, the findings on the specifica- 
tion and charge should be consistent, and the finding on the former 
should be such as to support the latter. In their finding of guilty 
upon the specification, the court should ^ in terms except from jts 
apphcation such words of the specification as allege or describe 
desertion exclusively, and substitute words describing the lesser 
offense; the words ''did desert," for example, being^ excepted, and 
the words ''did absent himself without authority" being substituted. 
The finding on the charge should regularly be "not guilty, but guilty 
of absence without leave." ^ R. 7, 357, 616, 634, Mar. and May, I864; 
9, 24, 26, 46, and 49, May, 1864; 13, 655, May, 1865; C. 12177, Mar. 
11, 1902; 12234, Mar. 19, 1902; 12375, Apr. 8, 1902; 12577, May 7, 
1902; 18934, Dec. 11, 1905. 

XII A 6 b. It is a further pecuharity of the finding at military law 
that, where an accused is charged with "conduct unbecoming an 
officer and a gentleman," or with any specific offense made punishable 
by the Articles of War, and the court is of opinion that while the 
material allegations in the specification or specifications are substan- 
tially made out, they do not fully sustain the charge as laid but do 
clearly estabhsh the commission 'of a neglect of mifitary duty or a 
disorder in breach of military discipline as involved in the acts alleged, 
the accused may properly be found guilty of the specification (or 
specifications) and not guilty of the charge but guilty of "conduct to 
the prejudice of good order and mifitary discipline." Such a form 
of finding is now common in our practice^ especially where the charge 
is laid under article 61, and its legaUty is no longer questioned. R. 
5, 265, Nov., 1863; 9, 656, Sept., 1864; 11, 87, Nov., 1864; 29, 299, 
Oct., 1869; P. 64, 193, Mar., 1894. 

XII A 6 c. The authority thus to find, however, has not been 
extended beyond the case indicated in the last paragraph: the reverse, 
for example, of this form of finding, has never been sanctioned. A 
finding or guilty of a certain specific offense, under a charge of another 
specific offense, or under a charge of "conduct unbecoming an officer 
and a gentleman," or of "conduct to the prejudice of good order and 
military discipfine," would be wholly irregular and invalid. Thus a 
finding of guilty of disobedience of orders (or of a violation of article 
21) under a charge of mutiny in violation of article 22, or a finding of 
drunkenness on duty (or of a violation of article 38) under a charge for 
a drunken disorder laid under article 61 or 62, would be not only unau- 
thorized but now almost imprecedented, and, if such a finding were 
made, it could scarcely fail to be formally disapproved. And so of a 
finding of "conduct unbecoming an officer and a gentleman" under a 
charge of "conduct to the prejudice of good order and military dis- 

^ Compare Reynolds v. People, 83 111., 479, and note the similar authority given in 
criminal cases in the United States courts, by sec. 1035, R. S. 

^ A simple finding, however, of guilty of absence without leave, though an irregular 
form, would amount in law to an acquittal of the higher offense charged. Compare 
Morehead v. State, 34 Ohio St., 212. 



DISCIPLINE XII A 7. 539 

cipline." R. 11, 27^, Dec, 186 Jf; 16, 532, Sept., 1865; C. 15114, 
Aug. 15, 1903. 

XII A 7. Held that a court may not substitute a finding of larceny 
on a charge of burglary. C. 12177, May 15, 1902; 12334, Apr. 28 and 
May 3, 1902; 12689, JUay 14, 1902. Held further that when a charge 
is laid under a specific article a finding under any other specific 
article is wholly irregular. C. 15114, Aug. 15, 1903. 

XII A 8 a (1). To justify a conviction of a capital offense of offering 
violence against a superior officer under the twenty-first article of war 
it should be made to appear in evidence that the accused knew or 
believed that the person assaulted was in fact an officer in the Army 
and was his "superior" in rank.^ E. 29, 4^5, Dec, 1869. 

XII A 8 a (2). Under a charge of a violation of article 21 in offeiing 
violence to a superior officer, it should be alleged and proved that the 
officer assaultea was at the time "in the execution of his office." R. 1, 
462, Dec, 1862; 9, 90, May, I864. 

XII A 8 a (3) . Under a charge of a disobedience of the order of a 
superior ofiicer in violation of article 21, it should be alleged, and 
should appear from the evidence introduced, that the order or "com- 
mand" was "lawful." B.27, 488, Jan.,^ 1869.^ An officer or soldier 
is not punishable under this article for disobeying an unlawful order. 
R. 26, 603, June, 1868. But the order of a proper superior is to be 
presumed to be lawfid, and shbuld be obeyed, where it is not clearly 
and obviously in contravention of law. Unless the illegality is 
unquestionable, he should obey first, and seek redress, if entitled to 
any, afterwards. A military inferior in refusing or failing to comply 
with the order of a superior on the ground that the same is, in nis 
opinion, unlawful, does so, of course, on his own personal responsi- 
bifity and at his own risk. R. 26, 256, Dec, 1867. 

XII A 8 a (3) (a). To justify, from a mihtary point of view, a 
mifitary inferior in disobeying the order of a superior the order must 
be one requiring something to be done which is palpably a breach of 
law and a crime or an injury to a third person, or is of a serious char- 
acter (not involving unimportant consequences only) and, if done, 
would not be susceptible of being righted. An order requiring the 
performance of a military duty or act can not be disobeyed with 
impunity unless it has one of these characters. If not triable under 
the twenty-first article such disobedience may be tried under the 
sixty-second. Held that there could be no more dangerous principle 
in the government of the Army than that each soldier should deter- 
mine for himself whether an order requiring a military duty to be 
performed is necessary or in accordance with orders, regulations, 
decision circulars, or custom, and may disobey the order if, in his 
judgment (taking, of course, all risks in case his judgment should be 
erroneous), it should not be necessary, or should be at variance with 
orders, regulations, decision circulars, or custom. It is his duty to 
obey such order first, and if he should be aggrieved thereby he can 
seek redress aftej'wards."^ 0. 97, July, 1894. 

1 See G. O. 34, Dept. of Vkginia, 1863. 

^ The civil responsibility is another matter. Civil courts have sometimes made 
allowance for the requirements of military discipline, but, if they should not, the 
military obligation would remain unimpaired. The soldier, in entering the service, 
has voluntarily submitted himself to this double and possibly conflicting liability. 
The evil of an undisciplined soldiery would be far greater than the injustice (apparent 
rather than actual) of this principle. 



540 DISCIPLINE XII A 9 a. 

XII A 9 a. Where a court in its findings substituted the words 
"under the influence of intoxicating hquor" for the word "drunk" in 
a specification under article 38, and found "not guilty" of the charge 
but "guilty" of conduct to the prejudice, etc., remarked, that such a 
discrimination as this finding apparently attempts, can not safely be 
encouraged in the disposition of cases arising under article 38. The 
object of the article is manifestly to enforce that measure of sobriety 
which is essential to the full and calm control of both the mental and 
physical faculties, and thus to protect the military administration 
from the great miscliief to wliich it may be liable from the blunders 
and excesses of officers attempting to perform their duties under the 
influence of drink. Any intoxication wliich is sufficient to sensibly 
impair the rational and full exercise of the niental and physical 
faculties is drunkenness within the meaning of the article; and should 
the condition of an officer accused of that offense not have partaken 
of this description, it is better that he be acquitted than that courts by 
endeavoring to mark degrees of drunkenness should attempt distinc- 
tions, which in practice would tend to defeat, in great measure, the 
purpose of the article. Recominended, therefore, that the findings in 
this instance be disapproved.' R. 36, 444, Afr., 1875; 37, 118, 152, and 
673, Nov., 1875, to June, 1876; 38, 272, Aug., 1876; 4I, 339, July, 
1878. It is not a sufficient defense to a charge of drunkenness on 
duty to show that the accused, though under the influence of liquor, 
contrived to get through and somehow perform the duty. B. 37, 118,_ 
Nov., 1875; C. 25940, Jan. 15, 1910. 

XII A 10 a. It is no defense to a charge of "sleeping on post" thai 
the accused had been previously overtasked by excessive guard duty ; ^ 
or that an imperfect discipline prevailed in the command and similar 
offenses had been allowed to pass without notice; ^ or that the accused 
was irregularly or informally posted as a sentinel.^ Evidence ol such 
circumstances, however, may in general be received in extenuation 
of the offense ; or, after sentence, may form the basis f pr a mitigation 
or partial remission of the punishment.* An officer who places or 
continues a soldier on duty as a sentinel when from excessive fatigue, 
infirmity, or other disability, he is incompetent to perform the impor- 

' This opinion and recommendation were concurred in; see the order publishing 
the case, G. C. M. O. 33, War Department, 1875. 

Article 38 has been repeatedly construed in general orders. _ In _G. O. No. 53, 
headquarters Army of the Potomac, of 1862, the general commanding, in stating that 
he finds it hard to understand the doubts sometimes entertained ' 'as to the degree of 
intoxication which unfits a soldier for the performance of his duties," observes: 

' 'Unfitness may be more or less complete; but to be intoxicated at all unfits a man 
either to give an order or to execute it. " 

In a subsequent general order of the same Army, No. 98, of 1862, it is said: 

"Nothing can be more erroneous than to suppose that as long as an officeris not 
drunk to insensibility — a condition, moreover, in which he is far less apt to do mischief 
than when he is simply drunk enough to be indiscreet — he is not drunk at all . * * * 
The fullest possession of his faculties by every officer is necessary to fit him to discharge 
his duties properly. These duties are" not so simple as to be within the competency of 
a half sober person . " 

See also G. C. M. O. 21, Dept. of the Mo., 1870; do. 48, Dept. of Va. & N. C, 1864; 
do. 33, Dept. of the Platte, 1871. 

2 See G. O. 74, Army of the Potomac, 1862. 

3 G. O. 10, Middle Mil. Dept., 1865; do. 166, Dept. of the South, 1864. 

* See G. O. 10, 62, Dept. of Va. & N. C, 1863; do. 2, Northern Dept., 1865; do. 67, 
Dept. of Washington, 1866; do. 9, Dept. of the South, 1870; G. C. M. O. 44, Dept. of 
Texas, 1875. 



DISCIPLINE XII A 11 a. 541 

tant duties of such a ]^osition, ^vill ordinarily render himself liable to 
charges. 1 C. 18036, May 23, 1905; 20325, Sept. 4, 1906. 

XII Alia. It is no defense whatever to a charge under article 61, 
that between the date of the refusal by the United States to pay the 
assignee of a duplicated voucher and the date of the arraignment of 
the officer or of the service of the charges, the money due has been 
paid, or somehow secured or made good to the assignees, or that he 
has been induced to withdraw or suspend his claim against the officer.^ 
P. 50, 45, Oct., 1891. 

XII A 12 a. Held that a specification alleging homicide, but not 
adding "wdth maHce aforethought," or in terms to that effect, was 
pleading of manslaughter only and thus witliin article 62. R. Jf.7, 385, 
July, 1884. 

XII A 12 b. It is a defense to a charge under article 62 of the 
embezzlement defined in section 5490, R. S., as consisting in a failure 
to safely keep public moneys by an officer charged with the safe- 
keeping of the same, that the funds alleged to have been embezzled 
were, wdthout fault on the part of the accused, lost in transportation 
or fraudulently or feloniously abstracted. R. 1, 435, Nov., 1862. 

XII B 1 a. Under the Executive order of March 30, 1898, previous 
convictions "whatever their number within the prescribed period," 
are admissible to aid the court in determining upon the proper meas- 
ure of punishment,^ whether the limit of punishment is within or 
greater than the punishing power of an inferior court; but if greater 
the prescribed limit can only be increased on account of such convic- 
tions. (See p. 58, Manual, 1908.) The limits of punishment are, 
however, operative only "in time of peace." (Act of Sept. 27, 1890; 
Manual, 1908, p. 51.) In time of war, therefore, courts-martial are 
remitted to the discretion conferred upon them by the Articles of War. 
0. 5781, Feb., 1899. 

XII B 1 a (1). Previous convictions except of desertion on a trial 
for desertion, not adjudged during the current pending enlistment of 
the soldier but incurred during a prior enlistment, are not admissible. 
R. 56, 305, July, 1888; P. 61,225, Aug., 1893. Nor is evidence of a 
previous conviction b}^ a civil court admissible in this procedure.^ 
P. 26, 380, Sept., 1888; C. I4I6I, Feb. 13, 1903. 

XII B 1 a (1) (a). Evidence of a previous conviction is not admis- 
sible where the findings and sentence were disa/pproved by the proper 
reviewing authority. R. 52, 121, 508, Mar. and Sept., 1887. As to 
all trials (except those had by a summary court where the post com- 
mander acts as the court, and no approval of the sentence is required 
by law), the term "previous conviction" means a conviction to which 
effect has been given by the approval of the sentence by competent 
authority.^ P. 58, 210, Mar., 1893; 0. 11830, Bee. 30, 1901. 

XII B 1 a (1) (6). A court-martial refused to take into considera- 
tion evidence of previous convictions offered by the judge advocate 

1 See G. 0. 15, Army of the Potomac, 1861; do. 62, Dept. of Va. & N. C, 1863; 
G. C. M. O. 59, Dept. of Texas, 1872; do. 80, Dept. of the Missouri, 1875. 

^ See the remarks of the reviewing authority m the cases published in G. C. M. O. 
88of 1886 and 56 of 1893. 

^ This pro^dsion is repeated in the new Executive order of June 12, 1905, prescrib- 
ing hmits of punishment, published in G. O. 204, War Dept. , Dec. 15, 1908, as amended 
by G. O. 77, War Dept., June 10, 1911. 

* See S. O. No. 23, Dept. of the Columbia, Feb. 1, 1905 (G. 0. M. 0. Rec No. 42626). 

* See Circ. 10, A. G. O. 1893. 



642 ' DISCIPLINE XII B 1 a (i) (c). 

on the grounds — (1) that the accused had been previously punished 
for each offense; (2) that he had not introduced any testimony in 
support of his character, and, in the absence of such testimony, the 
rules of evidence preclude attacking the same. Held that such objec- 
tions were not well taken.^ R. 50, 647, Aug., 1886. 

XII B 1 a (1) (c). The proper evidence of a previous conviction 
is the record of the trial or a duly authenticateci copy of the record 
or of the order of promulgation. R. 52, 508, Sept. 8, 1887. Copy of 
the summary court record should be certified by the post commander 
or adjutant" to be a true copy. P. 6^, 36, Feb. 20, 1894; 65, 170, 
June, 1894- The certificate of the company commander to the fact 
of conviction as shown by the company records is not a legal substi- 
tute. P. 65, 170, June, 1894- When the proof produced is the copy 
furnished the company or other commander it should be returned 
to him and a copy attached to the record of the general court-martial 
before which the trial is had. C. 208, Sept., 1894. The statement 
of service required by Army Regulations to be furnished the conven- 
ing authority with general charges is not evidence of previous convic- 
tions. P. 39, 459, Mar. 20, 1890. 

XII B 1 a (1) {d). As the date of approval fixes the date of con- 
viction, Held that the date of approval is the date which should be 
considered in the receipt of evidence of previous convictions. C. 
11830, Dec. 30, 1901. 

XII Bib. Held that after an acquittal evidence of previous con- 
victions should hot be presented to the court. C. 124-59, Apr. 19, 
1902; 12579, May 2, 1902. 

XII B 2. In a case where its sentence is discretionary, a court- 
martial may impose any punishment that is sanctioned by custom 
of the service, although (in cases of soldiers) the same may not be 
included in the list of the more usual punishments contained in the 
Army Regulations. R. 4, 131, 217, Sept. and Oct., 1863; 22, 555, 
Jan., 1867; 24, 192, 479, Jan. and Apr., 1867. 

XII B 2 a. The order prescribing maximum punisliments also 
provides for certain substitutions of j)unishment. The purpose of 
these provisions is not only to determine the measure but also the 
kind of punishment, wliicli should be considered authorized, so far 
as the offenses specified in the order are concerned. Thus where the 
prescribed limit is forfeiture and confinement, a reprimand in lieu 
thereof can not legally be adjudged. C. 436, Oct., 1894- 

XII B 2 b. While a specihc punishment may be recommenced in 
orders to be adjudged by courts-martial in a certain class of cases, 
it is not competent to order such courts to adopt a particular form 
of sentence in any case. The duty and discretion of courts-martial 
in the imposition of punishments are prescribed and defined by the 
Articles of War. R. 31, 354, ^^«1/, iS71. 

XII B 2 c. While upon the conviction of an officer or soldier 
under a charge of a crime, such as manslaughter, robber}^, larceny, 
etc., to the prejudice of good order and military discipline, the statute 
of the United States or State, providing for its punishment as a civil 
offense, may well be referred to as indicating the nature and extent 
of the punishment deemed proper for the same by the civil authori- 



* A statute imposing heavier penalties on a person conAacted of a felony, if twice 
before convicted of a crime, is not unconstitutional, as putting twice in jeopardy. 
McDonald v. Mass., 180 U. S., 311. 



J 



DISCIPLINE XII B 2 d. 543 

ties, the punishment to be imposed by the court-martial should never- 
theless be measured less by the criminality of the act as a civil offense 
than by its gravity as a breach of military discipline. Thus where a 
soldier, having been brought to trial before a civil court for the homi- 
cide of another soldier, and inadequately sentenced, was subsequently 
tried by a general court-martial for the military offense involved in 
his act, lielxl that the court would only properly impose upon him a 
penalty proportioned to the injury done to the good order and dis- 
cipline of the service, and should not, by an excessive punishment, 
attempt to compensate for the overlenient judgment of the civil 
court. R. 41, 188, Apr, 1878; C. 14851, July 13, 1903. 

XII B 2 d. Drunkenness on duty on occasions other than those 
specified in the order prescribing maximum punishments are offenses 
under the thirty-eighth article, for which maximum punishments 
have not been prescribed. They remain, therefore, punishable at 
the discretion of the court-martial as authorized by the Articles of 
War and the custom of the service. P. 64, 44'^, Apr., 1894- 

XII B 2 e. Held in a case arising in 1898 in the Department of 
Porto Rico under the fifty-eighth article of war that the provision in 
the fifty-eighth article of war that punishment ' ' in any such case shall 
not be less than the punishment provided for the hke offense by the 
laws of the State, Territor}^ or district in wliich such offense may have 
been committed, " did not refer to the laws of Porto Rico at that time 
or to the laws of foreign Governments where penalties might possibly 
be of a nature entirely foreign to American modes of punishment. 
Held further that a court can properly under such circumstances 
proceed to fix such punishment as may seem adequate to the offense. 
C. 5267, Nov. 7, 1898; 5848, Feh. 9, 1899. 

XII B 3 a. The best approved practice of military courts in 
determining upon their sentences is believed to be as follows: For 
each member to write a sentence and deposit it with the judge advo- 
cate; and (no sentence having been adopted by a majority of votes) 
for the court, after all the sentences have been read to it by the judge 
advocate, to proceed to vote upon them in the order of their severity, 
beginning with the least severe, until some one of those proposed is 
agreed upon by a majority of votes.^ It is not essential, indeed, that 
tliis form of voting should be pursued — it being open to the court, 
in its discretion, to adopt a different one. R. 21, 551, July, 1866; 
C. 15627, Dec. 7, 1903. 

XII B 3 b. After a conviction each member of the court should 
vote for a punishment appropriate to the offense of which the accused 
has been found guilty without regard to whether or not he believes 
the accused innocent or guilty. Held that a refusal by a member to 
vote a punishment after a conviction is a neglect of duty under the 
sixty-second article of war. R. 30, 145, Mar. 10, 1870. 

XII B 3 c. Care should be taken that there be no variance in 
the statement of the name, etc., of the accused, between the finding 
or sentence and the charges. R. 2, 545, June, 1863. 

XII B 3 d. A court-martial, in imposing the punishment of repri- 
mand, will, if adding anything in regard to its execution, properly 
direct that the reprimand be administered by the commander who 
convened the court. A sentence to be reprimanded by an officer 

* The practice here referred to is now, of course, modified to conform to the require- 
ments of the act of July 27, 1892, excluding the judge advocate from closed sessions. 



544 DISCIPLINE XII B 3 e (l). 

inferior to the convening authority is not in accordance with the 
approved practice of the service. It is not necessary or desirable, 
however, that the court should direct as to the execution of the 
sentence, the same being the proper province of the reviewing officer. 
R. 12, 18, Oct., 1864. 

XII B 3 e (1). Pay can not be forfeited (in a sentence) by impli- 
cation. If the court intends to forfeit pay, the penalty of forfeiture 
should be adjudged in express terms in the sentence.^ No other pun- 
ishment, imposable by court-martial — neither a sentence of death, 
dismissal, suspension, dishonorable discharge, nor imprisonment — 
involves per se a forfeiture or deprivation of any part of the pay or 
allowances due the party at the time of the approval or taking effect 
of the sentence.2 j^ g^ j^qO, Dec, 1863; 16, 676, Nov., 1865; 28, 
338, Jan., 1869; 30, 52, Sept., 1869; 32, 236, Jan., 1872; P. 54, 192, 
June, 1892; 62, 340, Nov., 1893. _ _ 

XII B 3 e (2). A court-martial, in forfeiting pay by sentence, 
should so fix the amount to be forfeited that the same will clearly 
and unmistakably appear from the sentence itself without a reference 
to any order or other source of information being necessary. So 
held that a sentence which required a soldier to forfeit an amount of 
pay sufficient to reimburse the United States for the value of certain 
property appropriated by him, without fixing the value of such 
property, was irregular, and might properly be disapproved unless 
corrected by the court on being reassembled for a revision.^ R. 37, 
186, Oct., 1868. 

XII B 3 e (3). Where a soldier, on enUsting, was paid an amount 
of money as local bounty, and this money, under an existing regula- 
tion of the provost marshal general's office, adopted with a view to 
prevent desertion and for the safekeeping of the funds, was taken 
from the possession of the soldier by the military authorities, and the 
soldier presently deserted and was subsequently apprehended and 
brought to trial, held that the court was not authorized to forfeit 
this money by its sentence; the same being private property of the 
soldier held by the authorities, not as money due him by the- United 
States but as a special bailment and trust for his personal benefit. 
R. 22, 642, Mar., 1867. 

XII B 3 e (4). An officer on trial applied to have certain witnesses 
summoned from a distance and a continuance granted to await their 
appearance. To this the court consented on his making an affidavit 
setting forth material matter expected to be established by the wit- 
nesses. Wlien these appeared it was found that they could give no 
material testimony upon the points indicated in the affidavit. The 
court, in making up its sentence upon conviction, proposed to impose 
upon the accused (in connection with imprisonment) a fine of two 

1 Compare Elliott v. Railroad Co., 9 Otto, 573. 

2 This principle is well illustrated by the opinion of the Attorney General (13 
Opins., 103), concurring with an opinion of the Judge Advocate General in the case 
of Maj. Herod, where it was held that the fact that the accused "had been sentenced 
to death on conviction of murder did not affect his right to his pay from the date 
of his arrest to that of the final action taken on the sentence by the President. And 
see the more recent opinion of the Attorney General of November 9, 1876 (15 Op., 
175), to the effect that the pay of officers and seamen of the Navy is not divested by 
the operation of sentences of imprisonment or suspension, but only when forfeited in 
specific and express terms in the sentence. 

^ Compare case in G. ('. M. 0. 65, Dept. of Dakota, 1880. 



DISCIPLINE XII B 3 f (i) (a). 545 

hundred dollars as the estimated cost to the Government of procur- 
ing the attendance of the said witnesses. Held that the facts 
stated did not constitute a proper basis for the imposition of such 
fine as a punishment for the offense for which the officer was convicted. 
His conduct in the matter, if deemed so culpable as to constitute a 
miUtary offense, should be made the subject of a separate charge to 
be investigated on a separate trial. R. 29, 329, Oct., 1869. 

XII B 3 f (1) {a). A court-martial, in sentencing a noncommis- 
sioned officer to be reduced to the ranks, is not empowered to direct 
that when reduced he be transferred to another regiment or company.^ 
R. 11, 205, Dec, 1864. 

XII B 3 f (2). Loss of, or reduction in, files or steps (i. e., relative 
rank), in the Ust of the officers of his grade, is a recognized legal pun- 
ishment by sentence of court-martial, in a case of a commissioned 
officer. Like disqualification, it belongs to the class of continuing 
punishments.2 R. 21, 882, May, 1866; 51, 677, Mar., 1887; P. 41, 
380, July, 1890; 56, 434, Dec, 1892. 

XII B 3 f (3) (a). The punishment of suspension, as imposed by 
sentence, is usually in the form of a suspension from rank or from 
command for a stated term, sometimes accompanied by a suspension 
from fay for the same period. Suspension from rank includes sus- 
pension from command.* R. 7, 8, Jan., 1864- . 

XII B 3 f (3) (6). Like dismissal, suspension takes effect upon and 
from notice of the approval of the sentence officially communicated 
to the officer,* either by the promulgation of the same at his station 
or, where he is absent therefrom by authority, by the deliveiy to him 
of a copy of the order of approval or other form of official personal 
notffication of the fact of the approval. R. 27, 241, Sept., 1868; 33, 
109, June, 1872; 38, 341, Oct., 1876. 

XII B 3 f (3) (c). Suspension from rank does not involve a status 
of confinement or arrest. R. 7, 242, Feh., I864. In sentencing an 
officer to be suspended from rank, it is indeed not Unusual for the 
court to require that he be confined during the term of suspension to 
his proper station, or that of his regiment, etc., i. e., that the sentence 
be executed there. Where this is not done, while the suspended 
officer is not entitled to a leave of absence, it can not affect the execu- 

' The authority to order the transfer of soldiers is expressly vested by the Army 
Regulations in certain military commanders. 

2 See 12 Op. Atty. Gen., 547. 

The effect of this punishment is to deprive the officer of such relative right of pro- 
motion, as well as right of command, and of precedence on courts or boards and in 
selecting quarters, etc., as he would have had had he remained at his original num- 
ber. Such effect continues unless the sentence, pending its execution, is remitted. 

This punishment has sometimes been remarked upon as an objectionable one, 
apparently mainly on account of the inequality of its effect upon other officers of the 
grade of the officer sentenced. Thus, where an officer is reduced a certain number 
of files, those below whom he is placed are advanced while those below him gain 
Qothing. (See G. C. M. O. 25, War Dept. 1873; do. 2, Dept. of Dakota, 1873.) Wher3 
he is reduced to the foot of the list, this objection does not apply; this form of the 
punishment, however, where the list is a long one, is extreme and severe; more 
severe, often, than suspension for a fixed term. 

^McNaghten, Annotations of the Mutiny Act, p. 17, et seq. 

* Suspension, as a punishment for a noncommissioned officer, is not authorized in 
terms in art. 101, nor is it contemplated in the Army Regulations. It has been 
adjudged in but rare cases, and can not be regarded as sanctioned by principle or 
usage. But see a comparatively late instance in G. C. M. O. 33, Dept. of the East, 
1872. 

93673°— 17 35 



546 DISCIPLINE XII B 3 g (l). 

tion of his sentence to grant him one, and leaves of absence are not 
unfrequently granted tinder such circumstances. R. 36, 226, Feh.„ 
1875. 

XII B 3 g (1). In imposing a sentence of confinement at a military 
prison, the court should properly add ''at such place as the proper 
authority may designate," or words to that effect. To direct that 
the place of confinement be designated by an officer inferior to the 
convening authority is irregular and improper. R. 4, S56, and 5, 309 ^ 
Nov., 1863; 9, 600, Sept., I864. 

XII B 3 g (2). It is now established by a long series of precedents 
that a general court-martial is authorized to adjudge, by sentence, a 
term of imprisonment to extend beyond the end of the pending term 
of enlistment of the soldier, or beyond his legal period of service. 
Thus, for example, where the term of the enlistment of the accused 
has still a year to run, the court — the gravity of the offense justifying 
it — may sentence him to an imprisonment for two years or longer; 
so, it may sentence him to be dishonorably discharged (thus itself 
discontinuing his period of service), and then confined for a desig- 
nated term. And such sentences may be executed with the same 
legality as any other sentence of imprisonment. In the former case 
the soldier will not be entitled to be released from the confinement at 
the end of his enlistment, nor, in the latter, will he. Upon the execution 
of the discharge, become so entitled. In each case, upon the determi- 
nation of the enlistment or service, the party contmues to be held 
under his sentence not as a soldier but as a civilian. R. 31, 89, Dec, 
1870, 353, May, 1871; 38, 513, Mar., 1877; 39, 509, Apr., 1878. 
Where the approval of a sentence of confinement in a case of a soldier, 
in which proceedings had been duly commenced pending his term of 
enlistment, was not promulgated till after such term had actually 
expired, but no discharge had been given to the soldier before pro- 
mulgation, held, that it would be legal to subject him to the confine- 
ment adjudged by the sentence. R. 19, 600, Apr., 1866; G. 11156, 
Sept. 12, 1901; 13378, Sept. 30, 1902; 15133, Aug. 18, 1903; 15158, 
Aug. 25, 1903. 

XII B 3 g (3). Sentences of imprisonment till a fine, also imposed 
by the sentence, is paid, are sanctioned by the usage of the service. 
Held that it is proper in such sentences to affix a limit beyond which 
the confinement shall not be continued in any event. R. 13, 1^72, 
Mar., 1865; 20, 16, Oct., 1865; 32, ^7, Oct., 1871. 

XII B 3 g (4). The fact that the accused has been confined for an 
unreasonable period awaiting trial may properly be taken into con- 
sideration by the court in estimating the period of confinement to be 
imposed. R. 28, IO4, Aug., 1868. 

XII B 3 h. The punishment of ball and chain, though sanctioned 
by the usage of the service, should be imposed only in extreme cases. 
Its remission has in general been recommended by this office except 
in cases of old offenders or aggravated crimes, where deemed service- 
able as a means of obviating violence or preventing escape. R. 26, 
508, 631, 662, 664, Apr. and July, 1868; 28, 16, 93, July and Aug., 
1868, and 501, 532, Apr., 1869. This penalty has (as have also those 
of shaving the head and drumming out of the service) become rare 
in our Army.^ 0. 3773, June, 1898. 

* See ninety-eighth article of war, which forbids sentences caUing for flogging, 
branding, marking, or tattooing. 



DISCIPLINE XII B 3 i. 547 

XII B 3 i. Courts-martial are required to adjudge dismissal upon 
officers of the Army by the third, sixth, eighth, thirteenth, fourteenth, 
fifteenth, eighteenth, twenty-sixth, twenty-seventh, twenty-eighth, 
tliirty-eighth, fiftieth, fifty-fourth, fift^^-ninth, sixty-first, and sixty- 
fifth articles of war, upon conviction of the specific offenses therein 
described. In articles 8 and 50 the punishment of dismissal is 
referred to as "cashiering"- — a term which has almost passed out of 
use in our service, and when employed means no more than dismissal. 
R. 7, 601, June, 1864; H, 563, Oct., 1873. 

XII B 4 a. Military duty is honorable, and to impose it in any 
form as a 'punishment must tend to degrade it, to the prejudice of 
the best interests of the service. Thus advised that sentences impos- 
ing ''guard duty" for certain periods should properly be disapproved. 
R. 4, 402, Dec., 1863; 26, 507, Apr., 1868. So held of a sentence 
imposing, in connection with a term of confinement in charge of the 
guard, the penalty of "sounding all the bugle calls at the post during 
the same period." R. 37, 4^9, May, 1876. So held in regard to a 
sentence which required a deserter — not for the purpose of making 
good the time lost by his desertion but as a punishment — to serve 
lor an additional year after the expiration of his term of enhstment.^ 
R. 14, 396, Apr., 1865. 

XII B 4 b. Held that a sentence can not legally extend the time 
of the service of a soldier as such beyond the term for which he 
originally contracted. P. 40, 110, Mar., 1890. Thus the existing law 
fixing the term of a soldier's enlistment at five years, ^ a court-martial 
can have no power to prolong it by adding to such term an additional 
period by way of punishment. So a sentence "to make good, at the 
expiration oi his term, a period of 57 days during which his 
services were lost to the United States by being held in hospital on 
account of pistol wound received by him while in the commission of 
a disorder in violation of the sixty-second article of war," held unau- 
thorized and properly disapproved.^ R. 50, 4i3, June, 1886. 

XII B 4 c. Held that a court-martial can not legally sentence a 
soldier to deposit any part of his pay. P. 32, 252, and 283, May 8 
and 14, 1889; 34, 22, and 124, July 18 and 23, 1889. 

XII C. The remarking by the court, in connection mth the finding 
or sentence, unfavorably upon an officer or soldier (other than the 
accused) whose conduct is exhibited by the testimony, or upon an 
act or practice deemed proper to be noted in the interests of military 
discipline, though now comparatively unusual, is sanctioned by the 
authorities as permissible and regular in a proper case.* R. 28, 626, 
May, 1869; 29, 216, Aug., 1869. 

XII D. A court-martial may, in connection with its judgment, 

Eroperly animadvert upon a witness not only as testifying falsely, 
ut as giving evasive and disingenuous testimony; but the power to 

' See — as in accord with the spirit of this paragraph — the following orders: G. C. 
M. 0. 329, War Dept., 1864; G. O. 17, Dept. of the Missouri, 1861; do. 56, Army oi 
the Potomac, 1862; do. 3, Dept. of the Northwest, 1864; do. 49, Middle Dept., 1864. 

2 Now fixed at three years by the act of Aug. 1, 1894. 

^ That the liability to make good time lost by desertion results from a violation of 
the enlistment contract, that it is independent of any punishment which may be 
adjudged, and that it need not be adjudged or mentioned in the sentence. 

* See Simmons, sees. 699-707; Kennedy, 196, 7; De Hart, 182, 3; O'Brien, 268. In 
Jekyll V. Moore, 2 Bos. & Pul. 341, the expression of opinion by a court-martial, in 
acquitting an accused, that the prosecution had been actuated by malice, was held 
not to constitute a libel. 



548 DISCIPLINE XII E 1. 

thus animadvert upon witnesses should be exercised with caution. 
P. 42, 156, July, 1890. 

XII E 1 . A recommendation of the accused to clemency is no part 
of the official record of the trial, or of the proceedings of the court 
as such, but is merely the personal act of the members who sign it. 
It should not therefore be incorporated with the record proper, but 
should be appended to or transmitted with the same as a separate and 
independent paper. R. 12, 572, Sept., 1865. 

XII E 1 a. It is, of course, always discretionary with a member of a 
court-martial whether he will make or join in a recommendation to 
clemency. Members, however, will, in general, do well to refrain 
from subscribing recommendations where the testimony on the trial 
as to the merits of the case or the character of the accused fails 
clearly to justify a remission or mitigation of the punishment. Weak 
and ill-considered recommendations have not unirequently given rise 
to severe criticism on the part of reviewing officers. Thus in General 
Court-Martial Order 92, Headquarters of Army, 1867, the Secretary 
of War expresses himself as "surprised to find that any ofllicer of 
the court could recommend remission or commutation of the sen- 
tence of dismissal in a case where the conduct of the officer tried 
was as reprehensible as that of" the accused.^ Members, in offering 
recommendations, should be careful to state the specific grounds upon 
which they base the same.^ R. S3, 4I8, Oct., 1872. 

XII E 1 b. Members of a court-martial, desiring to recommend 
an accused to clemency need not all sign the same statement. There 
may be, in any case, two or more separate recommendations each 
signed by different members.^ R. 37, 121, Nov., 1875. 

XII E 1 c. Where the members of a court-martial who had 
joined in a recommendation which had been appended to the record 
and regularly transmitted to the reviewing authority, applied to have 
the same withdrawn on the ground that, because of information 
since received, their opinions had been changed, advised that such a 
proceeding would be exceptional and irregular, and that the prefer- 
able course would be to file with the record the application and state- 
ment of the members so that the same might be referred to and con- 
sidered in connection with the recommendation. R. 33, 580, Dec, 
1872. 

XII F. Where, after a sentence had been duly adjudged, and the 
record forwarded to the reviewing officer, a majority of the members 
of the court transmitted to him a written statement to the efl'ect that 
the sentence was intended to have a certain meaning not conveyed 

^ In G. 0. 36 of 1843, the Secretary of War, Hon. J. M. Porter, in reviewing a case, 
remarks as follows: "The practice of 'the members of a court-martial first finding an 
officer guilty, and then recommending him for clemency, is to be deprecated. It is 
an endeavor, too frequently made, to transfer the responsibility of their finding to 
the Department of war when it should rest upon the court itself." And see G. 0. 
342, War Dept., 1863; G. C. M. 0. 27, id. 1871. 

2 In G. O. 70, Dept. of Dakota, 1870, Maj. Gen. Hancock, the reviewing authority, 
observes: "As the members of the court are silent with regard to the considerations 
by which they were influenced in making their recommendation in the prisoner's 
behalf, it is impossible for the reviewing authority to determine whether their reasons 
for making the recommendation were sufficient to justify a mitigation of the sentence. 
No consideration can, therefore, be paid to it. The sentence is approved, and will be 
duly carried into execution." 

^ A case in which there were two recommendations— one signed by a single mem- 
ber — is published and remarked upon in G. C. M. 0. 92, War Dept., 1875. 



DISCIPLINE XIII A. 549 

by its terms — i. c, was not intended to operate as a forfeiture of 
certain pay clearly forfeited by it as recorded — lield that such irregu- 
lar statement could have no effect as a correction of the sentence ; that 
the proposed correction could only be made by the court itself, after 
havnig been reconvened to reconsider the sentence. R. 33, 3^7, 
Sej)t., 1872. 

XIII A. It is clearly contemplated by the statute law (see the one 
hundred and thirteenth and one hundred and fourteenth articles of 
war, taken from the old ninetieth article ; also the later provision in- 
corporated in section 1199, R. S.) that a court-martial shall make a 
formal record of its proceedings, and the Army Regulations and Court- 
Martial Manual direct as to the substance and form of the record in 
certain particulars. Upon such basis, the record of a court-martial 
has come to be, in our practice, a full report and recital of the details 
of the trial in each case, including all the testimony introduced.^ R. 2^, 
540, May, 1867; 27, 647, May, 1869; 32, 130, Nov., 1871. ^ 

XIII A 1 . It is the better practice that all the proceedings— even 
those that are irregular — which transpire in connection with a trial 
or at a revision should be set out in the record for the information 
of the reviewing authority. R. 26, 251, Dec, 1867. It is, however, 
not necessary to encumber a record bv spreading upon it documents, 
or other writing or matter, excluded \>j the court. But the charac- 
ter of the writing and the grounds upon which it was ruled out should 
be specified. R. 49, 6I4, Dec, 1885. 

XIII B. The copy of the convening order, directed, by Ai-my Regu- 
lations to be "set out" in each case, should properly be prefixed to 
the proceedings, as constituting the initial authority for the existence 
and action of the court. R. 32, 130, Nov., 1871; 33, 391, Oct., 1872. 
This order should of course be complete, and should exhibit, by its 
heading and its subscription, that it has proceeded from a commanding 
officer competent to order the court. R. 23, 636, Aug., 1867. Where 
several cases are tried by the same court, a separate copy of the order 
should be incorporated in the record in each case : Only to prefix a 
single copy to the first of a series of records attached together is 
irregular and in violation of the regulation as well as the general rule 
that every record should be "complete in itself." R. 4i ^07, Feb., 
I864. Where subsequent orders have been issued, adding or reliev- 
ing members or a judge advocate, or otherwise modifying the original 
convening order, copies of these sh6uld follow the original or be else- 
where incorporated in the record. R. 13, 384, Fel., 1865. In their 
absence it may not be possible to determine on the face of the record 
whether the officers who composed the court on the trial were actually 
or legally detailed therefor, or whether the prosecuting judge advo- 
cate, or the judge advocate who authenticates the proceedings, was 
so detailed. R. 21, 488, June, 1866; 0. 5323, Nov., 1898. In con- 
nection, however, with any order making a change in the original 
detail of members or substituting a new judge advocate, the record 
should note the fact of the new member taking his seat, or new judge 
advocate commencing to officiate, according to the order, on a certain 
day. R. 29, 6O4, Jan., 1870. 

XIII B 1 . Held that the record of proceedings of a general courts 
martial should show the authority under Mdiich each member of the 
court acts as such. C. 5331, Nov. 16, 1898. 

* Testimony taken before inferior courts-martial need not be reduced to writing. 



550 DISCIPLINE XITI C 1. 

XIII C 1. The record should show tliat the court met and organized 
pursuant to the order or orders constituting it. It is necessary, ^rs^, 
to the due organization of a general court-martial that there should 
assemble at the time and place indicated in the order at least a 
quorum, i. e., five, of the officers detailed as members. And the 
record should show that at least five members were present and act- 
ing, not only at the original assembling and proceeding to business 
as well as at the formal organization after the right of challenge has 
been fully exercised, but also at every day's session throughout the 
trial to the end. R. 3, 413, Aug., 1863;^ 6, 384, Sept., I864. The 
record of the first assembling should specify the members present by 
name, rank, etc. A statement to the effect that the same members 
were present as at a previous trial by the same court is improper, as 
being in contravention of the rule that the record of each case should 
be an entirety and not made up as to any particular by a reference 
to a record of a previous case. R. 3, 402, Aug. I4, 1863. It is not, 
however, irregular to state at the commencement of any day's pro- 
ceedings — subsequent to the day of the first session of the court in 
any case — that all the members and the judge advocate, without 
specially naming them, were present. R. 21, 351, Apr., 1866; 26, 
516, Apr., 1868. The record should also show the presence ojf the 
accused at the time of the organization of the court for his trial, as 
also at all the material stages and portions of the proceedings.^ R. 
24, 488, Apr., 1867. 

In the record of the proceedings of a court-martial at its organiza- 
tion for the trial of a case the officers detailed as members and judge 
advocate should be noted by name as present or absent. In the 
record of the proceedings of subsequent sessions the following form of 
words should be used, subject to such modifications as the facts may 
require: "Present, all the members of the court and the judge 
advocate." When the absence of an officer who has not qualified, or 
who has been relieved or excused as a member, has been accounted 
for, no further note should be made of it.^ P. 4^, 395, Apr., 1891. 

XIII C 2. The record should show that the order or orders con- 
vening the court and detailing the members were read to the accused 
or communicated to him, and that he was afforded an opportunity of 
objecting to any member; that is to say, that the privilege of chal- 
lenge, accorded and defined by the eighty-eighth article of war was 
extended to him. R. 2, 83, Mar., 1863; C. 16471, June I4, 1904. 
This testing of the members is the second essential to the due organiza- 
tion of the court, and, though the phraseology of the question put to 
the accused, or of his answer thereto, need not be given in the record, 
it should clearly appear either that he had (or made) no objection, 
or if he made any, what it was. R. 9, 166, May, I864. Where a 
specffic challenge is offered, it should, preferably, be recorded in the 
terms in which it is expressed by the accused; and, in connection 
with each challenge, the record should set forth the remarks of the 
member, if any, and the action of the court, as also, if an issue be 
joined on the challenge, the evidence, if any, introduced, and the 

1 Compare Long v. State, 52 Miss., 23. Should the accused escape or depart from 
the jurisdiction of the court, the record should so state, at the first session at which he 
is absent, and should the court continue the trial of the case the record should at 
each session show the absence of the accused. 

2 See Circular 5, A. G. O., 1891. 



DISCIPLINE XIII c 2 a. 551 

argument had. Wliere a member is added to the court at a subse- 
quent stage of the proceedings, the record should similarly show that 
the accused was afforded an opportunity of objecting to him, and set 
forth the action taken if objection was made. R. 8, 662, July, 1864. 
It may be added that while, with the convening order, any subse- 
quent orders by wliich the original detail may have been modified, 
should be read to the accused — the fact that other orders relating to 
the court, but not to its 'personnel, such as an order changing the 
place of meeting or an order authorizing the court to sit without 
regard to hours, may not haA^e been so read, will not constitute an 
irregularity. It is usual, however, and proper, to read all such orders, 
equally with those relating to the composition of the court, in the 
presence of the accused. R. 39, 239, Oct., 1877. 

XIII C 2 a. As a general court-martial controls its own proceedings, 
the right of challenge guaranteed to the accused by the statute can be 
exercised by him only when the opportunity to do so is extended by 
the court, and this is true whether the opportunity to exercise the 
right of challenge was extended to the accused by the court as a 
result of his request, or on the initiative of the court. There is no 
obligation on the part of the accused to demand his statutory rights. 
The obligation is on the court to see that the exercise of them is 
accorded to him. If, therefore, the record of the proceedings does 
not show affirmatively that the opportunity to exercise this statutory 
right of challenge was accorded the accused, no intendment can be 
made in favor of the regularity of the record, as the extension to the 
accused of the opportunity to exercise tliis statutory right is vital 
to the regularity of the proceedings, and the record of it must be 
shown affirmatively. C. 18764, Oct. 23, 1907; 28190, Apr. 24, 1911. 

XIII C 3. The record should show, as the final essential to the due 
organization of the court, that the members and judge advocate were 
qualified by being duly sworn. And this should be shown in the 
record of every case tried by the same court, since the court and 
judge advocate must be sworn independently and anew for each 
trial.^ R. 35, 8, Apr., 1873. The approved form for recording this 
proceeding is: "The members of the court and the judge advocate 
were then duly sworn." Any statement, however, will be legally 
sufficient from wliich it can be gathered by the reviewing officer, or 
presumed, that the members and judge advocate were in fact qualified 
as required by arts. 84 and 85. Where an absent member joins or a 
new member is added to the court, or the first judge advocate is 
relieved and a new judge advocate is detailed, at a stage of the 
proceedings subsequent to the original organization and qualifying, 
the record should show that such member or judge advocate, before 
acting, was sworn as above indicated.^ R. 3, 548, Aug., 1863; 9, 222, 
June, 1864; C. 5323, Nov., 1898. 

XIII D. The record should further set forth the arraignment of the 
accused on the charges and specifications, with the plea or pleas made. 

•Compare Coffin v. Wilbour, 7 Pick., 150. "It is not considered a compliance 
with" Army Regulations, directing that "the court is to be sworn at the com- 
mencement of each trial, " "to call several prisoners into court at the same time 
and swear the members of the court once before them all." G. O. 60, War Dept., 
1873. 

2 The inversion of the proper oi'der of swearing the court and judge advocate was 
held by the Attorney General (13 Op., 374) not to have invalidated the proceedings of 
a naval court-martial 



552 DISCIPLINE XIII E. 

If special pleas are interposed, the issue joined and action taken upon 
the same should be clearly stated. R. 2, 83, Mar.. 1863; 15, 5J^6, 
July, 1866; C. 5166 and 5187, Oct., 1898. The charges and specifica- 
tions should properly be embodied in the record instead of being 
referred to as annexed. R. 14, 39, Jan., 1865. 

XIII E. The record of a trial by court-martial should include a rec- 
ord of meetings where no business is transacted, together with a state- 
ment of the reason why none was transacted. R. 48, 209, Jan., 1884- 

XIII F. It is not customary to take notice in the record of a mere 
recess; but if a recess be noted at all, it should appear from the 
record that, on the reassembling, the members, judge advocate, and 
accused were duly present. P. 57, 418, Jan., 1893. 

XIII G. Among the minor points held by the Judge Advocate 
General, in connection with the subject of the form of the record, are 
the following: That the several stages of the proceedings of the 
court should appear in the record in the proper order; thus, that the 
swearing of the court should not be recorded before the statement 
as to whether the accused objected to any of the members, etc. 
R. 11, 1, Oct., 1864. That, in its statement of the opening of each 
day's session, the record may well mention, if such was the fact, that 
the proceedings of the previous day or session (if any were had in 
the same case) were read and approved. R. 25, 349, Feb., 1868; 
34, 167, Mar., 1873. Such a reading, however, though desirable 
as giving the court an opportunity to make corrections, is often 
not resorted to. R. 21, 679, Nov., 1866. 

XIII H. Where the court is reassembled for the purpose of a 
revision of its proceedings in any particular, the record should formally 
recite all that is ordered and done as a new and independent chap- 
ter of the history of the case tried. The record of a revision will 
properly begin with setting forth a copy of the order reconvening 
the court, and will show that at least five members assembled, together 
with the judge advocate, and, where the correction required is such as 
to make it proper that he be present, the accused. The record will 
further show the action taken oy the court, in making the correction 
or otherwise, under the order, and the proceeding^ will be finally 
authenticated by the signatures of the president and judge advocate. 
R. 1, 487, Dec, 1862; 2, 97, Mar., 1863; 9, 653, Sept., 1864; 11, 93, 
113, Nov., 1864; 15, 547, Aug., 1865; 17, 402, and 19, 135, Oct., 1865. 
Where the court decides upon making the correction, the same should 
be declared to he made in manner and form as determined upon and 
with the proper reference to the part of the original proceedings in 
which the error occurs. The error itself, however, is to be left as 
originally recorded ; all corrections in the hodj of the record by era- 
sure, interlineation, etc., being irregular and improper. R. 11, 93, 
supra; R. 16, 202, May, 1865; P. 23, 345, Apr., 1888. 

XIII I. When the court closes, the record should properly set forth 
that the judge advocate withdrew. (Act of July 27, 1892, 27 Stat., 
278.) But an absence of a statement to this effect will not impair 
the legal validity of the record. Wliere it simply appears from the 
record that the court "closed," the presumption will be that, in 
closing, the requirements of law were observed. P 56, 887, Nov., 
1892; 65, 350, 356, June, 1894; G- IH, Aug., 1894. 

XIII K. The record should fully set forth all the testimony intro- 
duced upon the trial — the oral portion as nearly as practicable in the 
precise words of the witness. R. 2, 23, Feb., 1863. For a judge- 



DISCIPLINE xni L. 553 

advocate to assume to record only such testimony as he considered 
material, or to summarize the testimony given, has been remarked 
upon as a gross irregularity. R. 3, 189, July, 1863; 20, 4^, Oct., 
1865.^ 

It is usual and proper (though not essential) to specify by which 
party the witness is introduced and by whom the questions are put. 
U. 3%, JfSo, Sept., 1873. It is also usual (though not essential) to des- 
ignate the point at which the prosecution is closed and the testimony 
for the defense is commenced. R. 4, 131, Sept., 1863. It should 
appear that each witness (whether or not his evidence was important) 
was duly sworn (R. 3, 550, Aug.. 1863; 21, 43, Nov., 1865; 34, 
457, Sept., 1873), but it is not customary to add that he was sworn 
in the presence of the accused; this fact that he was so sworn being 
presumed in the absence of any statement to the contrary.^ R. 9, 
166, May, I864. Objections taken to the admissibility of testimony 
should be set forth with the argument had thereon, if an}^, and the 
rulin,^ of the court (R. 26, 643, July, 1868) ; and where the court is 
closed on any interlocutorv objection, the fact wiU properly be noted. 
R.9,221,June,1864. 

The record need not show affirmatively that the accused was offered 
an opportunity to cross-examine. Where it appears that he did not 
cross-examine, the presumption will be that he waived the privilege. 
So, the record need not state that the accused was notified or his priv- 
ilege of being assisted by counsel. P. 44, 456, Jan., 1891. Held thsit 
where the accused party desires to be sworn, and testifies in his own 
defense, his testimony is recorded like that of any other witness. 
C. 18764, Nov. 9, 1910. 

XIII L. The record of each case tried by a court-martial — where 
several cases are tried thereby — should "be complete in itself* 
and as much an entirety, both in form and in substance, as if it were 
the only case tried. Each record should be separate and distinct 
from every other record, containing all that is essential to an original 
and independent official paper, and so perfected as to leave no mate- 
rial detail to be supplied from any previous or other record. The pro- 
ceedings in each case should be made up separately; records there- 
fore should not be attached together, but should be prepared and 
transmitted as disconnected documents. R. 3, 402, and 4^^, ^'^9-, 
1863; 19, 336, Jan., 1866; 32, 130, Nov., 1871, and 453, Apr., 1872. 
Where a sentence is pronounced, the record should contain everything 
necessary to sustain it in fact and in law. R. 2, 59, Mar., 1863. 

XIII M. In a case of a death sentence the record should state 
that it was concurred in bv two-thirds of the members. R. 1, 487, 
Dec, 1862; 2, 21, Feb., 1863; 4, 158, Sept., 1863. 

XIII N. The record should set forth the finding on each of the 
several charges and specifications (R. 9, 221, June, 1864; 0. 5166 and 
5187, Oct., 1898), and the proper entry as to previous convictions 
(0. 3097, Apr., 1897). 

XIII O. It is not essential that the record of the court should 
show that the judge advocate called the attention of the accused to 
the fact of his privilege of testifying in his own behalf. General 
Order 75 of 1887 requires only that this be done "before the assem- 
bhng of the court." P. 36, 185, Oct., 1889. 

' There is, however, no statutory requirement that a witness should be sworn in 
the presence of the accused. 



554 DISCIPLINE XIV A 1. 

XIV A 1. This term (reviewing authority) is employed in military 
parlance to designate the officer whose province and duty it is to 
take action upon the proceedings of a court-martial after the same 
are terminated, and, when the record is transmitted to him for 
such action, to approve or disapprove, etc., the sentence. This 
officer is ordinarily the commander who has convened the court. 
In his absence, however, or where the command has been otherwise 
changed, his successor in command, or, in the language of articles 
104 and 109, " the officer commanding for the time being, " is invested 
(by those articles) with the same authority to pass upon the pro- 
ceedings and order the execution of the sentence in a case of con- 
viction. R. 13, 1^68, Mar., 1865. 

XIV A 2. A separate brigade was merged into a division. Held 
that the division commander became the reiviewng authority in 
cases tried by courts which had been convened by the separate 
brigade commander. G. 6151, Oct. 15, 1898; 5231, Oct. 31, 1898; 
5274, Nov. 9, 1898; 529^, Nov. 8, 1898. 

XIV A 3. Where the men who had been tried by general court 
martial had passed, with their command, from the department in 
which they had been tried, before action had been taken on their 
cases by the reviewing authority, it was held that the commanding 
general of the department in which they had been tried was the 
proper reviewing authority for the cases. ^ C. 4^4^, Sept. 9, 1898. 

XIV B. In acting upon the proceedings of a court-martial, the 
legal reviewing officer acts partly in a judicial and partly in a minis- 
terial capacity. He ''decides" and ''orders," and the due exercise 
of his proper functions can not be revised by superior military 
authority. Thus held that a reviewing officer who had duly acted 
upon a sentence and promulgated his action in orders, could not 
be required by a higher commander, or by the Secretary of War, 
to revoke such action. If the sentence be deemed unwarranted 
or excessive, relief may be extended through the power of pardon 
or remission; if void for want of jurisdiction or other cause, it may 
be set aside. R. 49, 264, Aug., 1885; 50, 553, July, 1886; C. 11509, 
Nov. 8, 1901; 17386, Jan. I4, 1905; 21613, June 1, 1907. 

XIV C. A military commander can not of course delegate to an 
inferior or other officer his function as reviewing authority of pro- 
ceedings or sentence of a court-martial, as conferred by the one 
hundred and fourth or one hundred and ninth article of war or 
other statute. Nor can he regularly authorize a staff or other 
officer to subscribe for him the action, by way of approval, disap- 
proval, etc., which he has decided to take upon such proceedings. 
An approval purporting to be subscribed by the commander, "&"(/" 
his staff judge advocate or other staff officer, would be open to 
question and quite irregular; as would also be any action subscribed 
by such an officer, purporting to be taken "in the absence and by 
the direction of" the commander. R. 4j 567, Jan.. 1864; -^^ ^^> 
and 8, 639, July, 1864; 9, 27, May, 1864; ^5, 548, July, 1865; 17, 
191, Aug., 1865; 27, 297, Oct., 1868; 37, 429, Mar., 1876. 

* The same view was held in 1901 in a case arising in China where the prisoner had 
been sent, with his command, to the Philippine Islands. Held that the department 
commander in the Philippine Islands was the ' 'successor in command' ' of the general 
in China. 



DISCIPLINE xrv CI. 555 

XIV C 1 . Beld, that in the event of the criticism by the review- 
ing authority of an individual being made the subject of an action 
at law he could not plead that his comment was protected by official 
privilege. C. 1U02, July 9, 1903. 

XIV D. A soldier was dishonorably discharged and thereafter the 
record of another trial of the same soldier on different charges, 
which trial was completed before he was dishonorably discharged, 
was placed before the reviewing authority. Held that as he was 
not then in the service the reviewing authority had no right to 
approve the second sentence. Further held that the act of June 
18, 1898 (30 Stat., 483), which provides ''that soldiers sentenced by 
court-martial to dishonorable discharge and confinement shall, until 
discharged from such confinement, remain subject to the articles of 
war and other laws relating to the administration of military justice," 
did not apply to his case as he was tried for oft'enses which he was 
alleged to have committed before he was dishonorably discharged. 
0. 13926; Jan. 12, 1903. 

XIV E. As an acquittal is a sentence in the sense that the latter 
word is used m civil jurisprudence, ordinarily meaning judgment, 
held that an acquittal similar to a sentence wluch carries puni'::hment 
is inchoate until acted on by the re\dewing authority, and may be 
returned by the reviewing authority for reconsideration by the court. 
a 5654, July 24, 1899. 

XIV E 1 . A reviewing officer can not himself correct the record of a 
court-martial ^ by striking out any part of the finding or sentence, or 
otherw^ise; nor can he in general change the order in wliich different 
penalties are adjudged by the court to be suft'ered. He may, how- 
ever, in general, specify the reasons for the action taken by him, with- 
out transcending his authority. Thus, where a department com- 
mander disapproved a sentence as madequate and, in stating his 
grounds for so doing, commented unfavorably upon the conduct of 
the accused as indicated by the evidence, held tliat such comments 
were a legitimate explanation of the action taken and did not con- 
stitute an adding to the punishment.^ R. 19, 676, Aug., 1866; 0. 
14260, Mar. 25, 1903. 

Held that in case of a conviction of desertion the action of the 
reviewing authority in approving so much only of the finding as con- 
victed the accused of the included oft'ense of absence without leave 
was unauthorized, as the reviewing authority thereby substituted a 
finding for that of the court. R. 47, 291, Aug., 1883; P. 48, 445, 
Oct., 1891; 62, 454, Dec, 1893. 

Held, where a court had found an accused "guilty, but without 
criminality," and the reviewing authority in disapproving tliis con- 
tradictory finding ordered that the words after the word ''guilty" be 
treated as struck out of the record, that he had no such authority to 
make such correction in the record, and that if he desired to amend 
the record he should have formally reconvened the court for that 
purpose. R. 12, 250, Jan. 11, 1865. 

XIV E 2. It is a principle of militaiy law that no military authority, 
whether the reviewing officer or other commander, can add to a pun- 
ishment as imposed by a court-martial. R. 2, 44^> ^^^, ^(^V O'^ 

' See 23 Op. Atty. Gen., 23. 

2 See as a marked instance of such comments, G. C. M. O. 104, Navy Dept., Sept. 
13, 1897. 



556 DISCIPLINE XIV E 2 a. 

June, 1863; 11, 310, Dec, I864. Neither forfeiture of pay, for 
example, nor fine, nor a corporal punishment, can be inflicted upon 
an ofiicer or soldier where the sentence fails to adjudge it. And 
neither the fact that the punishment awarded by the court is regarded 
as an inadequate one,^ nor the fact that the period is a time of war, can 
affect the application of the principle. R. 8, Jf.Jf.Ii., 657, May and 
June, 186 J^; 20, 430, Feh., 1866;^ 21, 257, Mar., 1866; C. 8977, Sept. 
17, 1900. Thus, where the punishment imposed by the sentence was 
to carry a weight of 20 pounds, held that it would be illegal for the 
officer charged with the execution of the sentence to increase the 
weight to 30 pounds. R. 27, 511, Feh., 1869. So where the sen- 
tence imposed simply a forfeiture of pay, Tield that it was adding to 
the punisliment to order the confinement of the accused in a military 
prison. R.ll, 98, Nov., 1864; 20, 34O, Feb., 1866. _ So held that a sen- 
tence of simple "confinement " for a certain time did not authorize the 
imposition, in connection with its execution, of hard labor. R. 21 , 310, 
Apr., 1866. Where an officer, on conviction of the embezzlement of a 
certain sum, was sentenced, without further penalty, to be dismissed 
the service, held that the department commander, in approving the sen- 
tence, could not legally order him to be confined at his station till he 
should make good the amount embezzled, smce this would be an adding 
to the punishment imposed by the court, as well as an Ulegal exercise 
of power over a civilian. R. 28, 122, Sept.,^ 1868; C. I426O, Mar. 25, 
1903. Where a sentence adjudges a fine without also adding (with a 
view to enforcing its payment) a term of confinement, such a con- 
finement can not of course legally be imposed by the military com- 
mander. R. 13, 472, supra. So held that paragraph II of General 
Order 61, War Department, 1865, to the effect that where a court- 
martial, in imposing a fine, has failed to require that the prisoner shall 
be confined till the fine is paid, "he will not be released without orders 
from the War Department, except on payment of the fine," tran- 
scended the authority of an Executive order, such a requirement 
being a punishment, which can be prescribed only by sentence of 
court-martial. R. 33, 309, Aug., 1872. 

XIV E 2 a. Nor can penitentiary confinement be legalized as a 
punishment for purely military offenses by designating a penitentiary 
as a "military prison," and ordering the confinement there of soldiers 
sentenced to imprisonment on conviction of such offenses. R. 35, 377, 
May, 1874; 39,659, Sept., 1878. 

XIV E 3. It is no longer necessary that the findings of a court- 
martial should be expressly approved. Formerly the one hundred 
and fourth article of war prescribed that no sentence of a court-martial 
should be carried into execution until the whole proceedings were 
approved by the reviewing authority, but now, as amended by act of 
July 27, 1892 (27 Stat., 278), it simply requires that the sentence shall 
be approved by such officer, and this applies as well in cases requiring 
confirmation of the President as in those that do not. C. 2844, Jan., 
1897; 5095, Oct. 8, 1898; 12723, June 21, 1903. 

XIV E 4 a. Where the reviewing officer deems that the proceed- 
ings of the court are in any material particular erroneous or ill- 
advised, his proper course in general will be to reconvene the court 
for the purpose of having the defect corrected, at the same time 
furnishing it with the grounds of his opinion. Thus if he regards 

' Compare Barwis v. Keppel, 2 Wilson, 314. 



DISCIPLINE XIV E 4 b. 557 

the sentence inadequate, he should, in reassembhng the court for a 
revision of the same state why he so considers it. R. 11, 490, 
Feb., 1865. While he can not compel the court to adopt his views 
in regard to the supposed defect, he may, in a proper case, express 
his formal disapprobation of their neglect to do so. Thus where a 
court martial, on being reconvened with a view of giving it an oppor- 
tunity to modify a sentence manifestly too lenient for the offense 
found, decided to adhere to the sentence as adjudged, and, on being 
again reassembled to consider further grounds presented by the 
reviewing commander for the infliction of a more severe penalty, again 
declined to increase the punishment, held that it was within the 
authority of the reviewing officer, and would be no more than proper 
and dignified for him, in taldng final action upon the case, to reflect 
upon the refusal of the court as ill-judged and as having the effect 
to impair the discipline and prejudice the interests of the mihtary 
service.^ R. 4, 579, Jan., 1864; 12, 546, Aug., 1865; C. 14260, 
Mar. 25, 1903. 

XIV E 4 b. The general finding of ''conduct to the prejudice," etc., 
on a charge of ''conduct unbecoming" is sanctioned in order to 
prevent a failure of justice, not for the purpose of relieving the 
accused of any of his due share of culpability. It should not there- 
fore be resorted to where the specific offense charged is substantially 
made out by the testimony. Thus in a case where the facts set 
forth in the specification to a charge of "conduct unbecoming an 
officer and a gentleman," and clearly established by the evidence, 
fixed unmistakably upon the accused dishonorable behavior com- 
promising him officially and socially, held that a finding by the 
court that he was guilty only of "conduct to the prejudice of good 
order and military discipline" should not be approved. In such a 
case the court should be reconvened for the purpose of inducing, 
if practicable, a finding in accordance with the facts and with justice. 
R. 30, 495, July, 1870. 

XIV E 4 c. Wliere the offense is alleged to have been committed 
on a particular day, and the evidence shows that it was committed 
on quite a different day^ — in such case, provided time is not of the 
essence of the offense and the specific act charged is sufficiently 
identified by the other testimony, the variance between the allega- 
tion and the proof will not constitute a fatal defect and need not 
induce a disapproval of the sentence where there has been a con- 
viction. A return, however, of the record to the court for correc- 
tion, if practicable, would well be resorted to by the reviewing officer 
before taking final action.^ R. 13, 361, Feb., 1865. 

XIV E 5. There is always a presumption, in the absence of obvious 
irregularity, that the proceedings were regular and according to law. 
P. 44, 456, Jan., 1891. 

XIV E 6. Wliere the record of the trial of a soldier who had pleaded 
not guUty, and in whose case considerable evidence had been intro- 
duced, was, by a casualty of war, lost before any action had been 
taken upon the sentence by the reviewing authority, held that, unless 
the court could be reconvened and a new record could be made out 
from extant original notes, the proceedings, inasmuch as they could 
not be intelligently reviewed or formally approved, should properly 

1 See G. C. M. O. 88, A. G. 0., 1864. 

2 See, to the same effect, G. 0. 16, War Dept., 1853. 



558 DISCIPLINE XIV E 1 a. 

be considered as inoperative and the sentence of no effect. R. 6, 582, 
Dec, 1864. 

Similarly held that the complete destruction of the record by fire, 
rendering impossible the preparation of the record from notes, before 
action by the reviewino; authority, operated as an acquittal. P. 55, 
181, Aug., 1892; 65, 338, June, 1894. . 

Similarly held where the stenographic notes, the only record of the 
proceedings, were lost. C. 24.198, Dec. 7, 1908, and Jan. 12, 1912. 

XIV E 7 a. A misnaming or misdescription of the rank of the 
accused in the specification should be taken advantage of by excep- 
tion in the nature of a plea in abatement. Wliere not objected to, 
the error is immaterial after sentence, provided the accused is suffi- 
ciently identified by the plea, testimony, etc. R. 37, 482, Apr., 1876. 

XIV E 7 a (1). A mere clerical error in the spelling of the name of 
the accused, leaving it idenn sonans, is not a case of misnomer and 
does not affect the validity of the proceedings as recorded. P. 25, 
234, June, 1888. 

XIV E 7 b. Where time or j^lace is omitted to be averred, or is 
averred without sufficient definiteness, and the defect is excepted to 
by the accused on being called upon to plead, the court will properly 
direct that an amendment be made. But where in either such case 
no objection is interposed by the accused, the proceedings will be 
sufficient in law provided the time and place of the offense can be 
made out with reasonable certainty from the testimony in connection 
with the specifications. R. I4, 635, and 16, 298, June, 1865; 20, 
280, Jan., 1866; 26, 412, Jan., 1868. 

XIV E 7 c. For some time after the enactment in 1874 of the 
present Articles of War, charges were not infrequently laid under 
articles b}^ their old numbers — as ''violation of the ninth" (old 
number), instead of the twenty-first (new number) "article," or 
"sleeping on post, in violation of the forty-sixth" (old number), 
instead of the thirty-ninth (new number) "article." Held, in such 
cases, that the error was one which could only be taken advantage of 
by an objection in the nature of a plea in abatement — whereupon 
indeed an amendment could at once be made — and that, in the ab- 
sence of such objection, the mistake was to be treated as immaterial 
after finding and sentence. R. 37, 313, Feh., 1876; 38, 495 and 552, 
Apr., 1877. 

XIV E 7 d. Held, that the fact that the judge advocate was per- 
sonally objectionable or hostile to the accused could not affect the 
validity of the proceedings of a court-martial. R. 27, 127, Aug., 1868, 
and 43, 106, Dec, 1879. 

XIV E 7 e. The fact that an accused soldier was tried with hands 
or feet in shackles, or with ball-and-chain attached, these having been 
omitted to be removed during the hearing before the court, does not, 
however reprehensible, affect the legality of the proceedings or 
sentence. R. 50, 33, Feh., 1886; 53, 196, Oct., 1886; 55, 686, July, 
1888. 

XIV E 7 f . That a member of the court acted as interpreter on a 
trial, held an irregularity, but one which did not affect the legahty 
of the proceedings. R. 9, 15, May, I864. 

XIV E 7 g. A court-martial, member of court, or judge advocate 
can not of course lawfully communicate to a reporter or clerk, by 
allowing him to record the same or otherwise, the finding or sentence 
of the court. Before proceeding to deliberate upon its tniding, the 



DISCIPLINE XIV E 7 h. 559 

court should require the rejDorter or clerk, if it has one, to withdraw. 
But the fact that the finding or sentence, or both, may have been 
made known to the reporter or clerk of a court-martial, can not 
affect the legality of its proceedings or sentence. R. 5, \l8, Dec, 
1863; 11, 318, Dec, 1864; 28, I46, Oct., 1868; 42, 218, Mar., 1879. 

XIV E 7 h. While the practice of noting the adjournment of the 
court at the end of the record of a trial is usual and proper, and 
is often of service in indicating the sequence of the cases tried and 
the course and order of the business transacted, a statement of such 
adjournment is not an essential part of the record of proceedings, 
and its omission will not affect their legality. R. 23, 627, Aug., 1867; 
33, 456, Nov., 1872. 

XIV E 7 i. The legal record of a court-martial is that record which 
is finally approved and adopted by the court as a body, and authen- 
ticated by its president and judge advocate. The court as a whole is 
responsible for the record; and the instrument which it approves as 
such is its record, however the same may have been made up. It is 
immaterial to the sufficiency of a record whether the same was kept 
or written by the judge advocate or a clerk. So, where a clerk or 
reporter, appointed and sworn to keep the record, did not act, but 
the record was prepared by the judge advocate or some other person 
employed by him to assist him, held, that this circumstance did not 
affect the legality of the record as finally approved by the court. 
R. 43, 346, June, 1880. 

XIV E 8 a (1). In passing upon the fuidings and sentence of a 
court-martial, the reviewing officer will properly attach special 
weight to its conclusions where the testimony has been of a conflicting 
character. This for the reason that, having the witnesses before it in 
person, the court was qualified to judge, from their manner in con- 
nection with their statements, as to the proper measure of credibility 
to be attached to them individually.^ R. 30, 383, 44^, ^(^V (^^ June, 
1870; 35, 542, Aug., 1874; S8, 272, 325, Aug. and Sept., 1876; C. 24618, 
Apr. 10, 1909. 

XIV E 8 a (2). A sentence, to be valid, must of course rest upon an 
approved finding of guilty of an offense for which the accused has 
been tried. Thus a duly approved finding of guilty on one: of several 
charges, a conviction upon which requires or authorizes the sentence 
Adjudged, will give validity and effect to such sentence although the 
similar findings on all the other charges are disapproved as not war- 
ranted by the testimony. Where such a sentence, though legally 
supported by the finding upon the single charge, is deemed too severe 
a punishment for the one off'ense, it may of course be mitigated by 
the proper authority. R. 11, 67, and 12, 30, Oct., 1864; 16, 70, Apr., 
1865. feut a finding of guilty of a specification to a charge but not 
guilty of the charge itself will not support a sentence unless, indeed, 
there is added a conviction of some lesser offense included in that 
charge. R. 7, 600, Apr., 1864; 9, 19, May, 1864; C. 11092, Aug. 16, 
1901; 16101, Apr. 21, 1904. 

XIV E 9 a (1). Held a good ground for the disapproval of a sentence 
that the court denied the request of the accused to have summoned a 

_' See the early case of Capt. Weisner, Am. Archiv., 5th series, Vol. IT, p. 895. So, 
civil courts will rarely interfere, except in cases of clear injustice, with verdicts of 
juries which have turned upon the credibility of witnesses. Wright v. State, 34 Ga., 
110; Whitten v. State, 47 id., 297, 



560 DISCIPLINE XIV E 9 a (2). 

clearly material and important witness whose testimony would not 
have been merely cumulative.^ R. 4^, 18, Apr., 1885. 

XIV E 9 a (2). If a member, absent during the whole of the original 
proceedings had in a trial, is in fact present during proceedings had on 
revision to reconsider the sentence, the revised sentence is clearly 
illegal and should be disapproved. C. 4^4^, 4750, 4751 , 4854, and 4855, 
Aug., 1898. 

XIV E 9 a (3). A material variance between the name of the ac- 
cused in the specification and in the sentence should; if possible, be 
corrected by a reassembling of the court for a revision of its sentence. 
If this be rendered impracticable by the exigencies of the service, the 
sentence should in general be disapproved as fatally defective. Thus, 
held, in a case where the names in the sentence and the specification 
were entirely different, the one being John Moore and the other James 
Cunningham (R. 17, 601, Feb., 1866); also in cases in which, while the 
surnames were the same, the Christian names were quite different, one 
being George and the other William, etc. (R. 9, 27, 134, May, 1864); 
also in a case where the name in the sentence, though similar to that 
in the specification, was not idem sonans, as where the accused was 
arraigned upon charges in which he was designated as Woodworth, 
but was sentenced under the name of Woodman. R. 2, 555, June, 
1863. A difference, however, in a middle initial is not a material 
variance, a middle name not being an essential part of the Christian 
name in law.^ R. 13, 481, Mar., 1865; C. 9066, Oct., 1900; 12396, 
Apr. 9, 1902. 

XIV E 9 a (4). Where the charges against a private soldier were 
preferred by the captain of his company, who also acted not only as a 
prosecuting witness but as interpreter on the trial, held a grave irreg- 
ularity which might well induce a disapproval of the proceedings and 
sentence unless it quite clearly appeared that no injustice had been 
done the accused.^ R. 7, 562, Apr., I864. 

XIV E 9 a (5). It does not invalidate the proceedings of a court- 
martial that a member who has been present during a portion of the 
trial, and has then absented himself during a portion, has subsequently 
resumed his seat on the court and taken part in the trial and judgment. 
Nor is the legality of the proceedings alTected by the adding of a new 
member to the court pending the trial. In either case, however, 
the testimony wliich has been introduced and the material pro- 
ceedings which have been had while the new or absent member was not 
present should be communicated to him before he enters or reenters 
upon his duties as a member. Such was the ruling of the Secretary 
of War on Gen. Hull's trial,"* and this precedent was followed in 

1 See G. C. M. O. 128, A. G. O. of 1876. 

2 That the law "recognizes but one Christian name," and that the insertion or 
omission oi a middle initial or initials ' ' will have no effect in rendering any proceed- 
ing defective in point of law," see 2 Op. Atty. Gen., 332; 3 id., 467; also Franklin v. 
Tallmadge, 5 Johns., 84; Roosevelt t). Gardinier, 2 Cow., 463; State v. Webster, 30 
Ark., 168. 

^ That an important witness for the prosecution on a trial should not properly be 
permitted to interpret the testimony of another such witness, is remarked in 
G. C. M. O. 24, Dept. of Texas, 1875. 

* See the reply dated Mar. 17, 1814, of the Secretary of War, Hon. John Armstrong, 
to the communication of the "acting special judge advocate," Hon. Martin Van 
Buren, submitting questions for the court. (Forbes' Trial of Hull, Appendix, pp. 
28-29.) It was indeed held by Atty. Gen. Berrien (2 Op. 414) that a member of a 
court-martial who has absented himself during the taking of testimony is disqualified 



DISCIPLINE XIV E 9 a (6). 561 

repeated, though not frequent, cases during the Civil War. For a 
member, however, who has been absent during a substantial part of a 
trial to return and take part in a conviction and sentence is certainly 
a marked irregularity, and one which may weU induce a disapproval 
of the findings and sentence in a case where there is reason to believe 
that the accused may have suffered material disadvantage from the 
member's action. R. 7, 128, 411, 467, Feb. and Mar., 1864; S, 662, 
July, 1864; ^7, 584, Mar., 1869; C. 18305, Oct. 28, 1905; 22162, Oct. 
5,1907. 

XIV E 9 a (6) . A direction in an order convening a general court- 
martial that if the judge advocate be prevented from attending, the 
junior member of the court wiU act in his stead, lield irregular and 
improper; the function of a judge advocate as prosecuting officer (see 
art. 90) not being properly compatible with that of a member of a 
court-martial. And the member having acted as judge advocate and 
member in the case, advised that the proceedings be disapproved by 
the reviewing authority. R. 2, 60, Mar., 1863; 21, 300, Mar., 1866. 
A court-martial has of course no authority to direct or empower its 
junior member or any other officer to act as its judge advocate. R. 28, 
198, Oct., 1868. 

XIV E 9 a (7). A witness who has given his testimony should in 
general be allowed to modify the same where he desires to do so in a 
material particular. But where the court has refused to permit a 
witness to correct his statement as recorded, such refusal need not 
induce a disapproval of the proceedings unless it appear that the 
rights of the accused have thus been prejudiced, it. 7, 451, Mar., 
1864. 

XIV E 9 a (8). Held that a sentence of two months' confinement, 
which prescribed that the confinement for two days out of every 
three should be solitary, was unauthorized as transcending the pro- 
portion fixed by the Army Regulations; such sentence in fact requir- 
ing that the confinement should be solitary for 40 days out of 60, while 
the regulations authorize but eighty-four days of solitary confinement 
in an entire year. R. 28, 329, Jan., 1869. 

XIV E 9 a (9). A sentence which, in imposing confinement (or 
imprisonment — the two terms being practically synonymous in 
sentences of courts-martial), fails clearly to indicate how long the same 
is to continue is irregular and inoperative. Such a sentence should 
be disapproved by the reviewing authority unless it can be procured 
to be corrected by a reassembling of the court for the purpose. R. 16, 
283, June, 1865. 

XIV E 9 a (10). Where a court-martial sentenced a soldier, in con- 
nection with confinement, to be dishonorably discharged at such date 
as might be fixed by the reviewing officer, advised that such a sentence 

to take part in the sentence. Atty. Gen. Gushing, however, held in a later opinion 
(7 Op. 98) that whether the absent member should resume his seat and act upon his 
return "must depend upon his own views of propriety." 

The Court-Martial Manual provides (p. .26, edition of 1898) that "no member who 
has been absent during the taking of evidence shall thereafter take part in the trial." 
This provision was at first viewed as mandatory and a failure to comply with it held 
to invahdate the sentence adjudged, but later the War Department apparently treated 
it as directory (see Circ. 21, A. G. O., 1899). It was, however, manifestly intended to 
enjoin a complete abandonment of the practice referred to in the text. 

93673°— 17 36 



562 DISCIPLINE XIV E 9 a (ll). 

was illegal, as devolving upon the reviewing officer a duty pertaining 
tothecourt.i R. 33, Jfil, Oct., 1872. 

XIV E 9 a (11). In a case where a court-martial made such excep- 
tions and substitutions in its finding upon the specification to a 
charge of ''forgery to the prejudice of good order and military dis- 
cipline" as to negative the material allegation of false writing, held 
that there was no legal basis for the finding arrived at of guilty of the 
charge. P. 31, 117, Mar., 1889. 

XIV E 9 a (12). Held that a finding, under a charge of desertion, 
of not guilty of desertion but guilty of a violation of the fortieth 
article of war, was not allowable and should be disapproved; the 
offense made punishable by that article — quitting guard, etc.— -not 
necessarily being or involving an absence without leave in the military 
sense, and the finding not being necessarily a conviction of the 
absence without leave contained in desertion. R. 57, 22, Oct., 1888; 
C. 15114, Aug. 15, 1903. 

XIV E 9 a (13) (a). A soldier in time of war committed an offense 
under the fifty-eighth article of war and charges were preferred. 
Held that if peace was declared before the charges were brought to 
trial the court would have no jurisdiction of the charges under the 
fifty-eighth article of war. Held further that if peace was declared 
before the sentence was imposed that the court was without juris- 
diction in the proceedings and that the sentence was illegal and 
should be set aside. R. 24, 42, Dec, 1866; C. 4916, Sept., 1898; 6738, 
July 13, 1899; 13309, July 25, 1902; 13653, Nov. 13, 1902; 13770, 
Dec. 6, 1902; 14882, June 25, 1903; Jan. 4, 1904; 16596, Feb. 10, 1905. 
Held further that if peace was declared before the record had reached 
the reviewing authority, he could not legally act on the case, as the 
fifty-eighth article of war is inoperative in time of peace. C. 13653, 
Feb. 18, 1903. 

XIV E 9 a (13) (6). Held, where the court awarded a less punish- 
ment under the fifty-eighth article of war than that prescribed for 
the offense by the local law, that the sentence was illegal and inopera- 
tive. C. 11332, Nov. 19, 1901; 11658, Nov. 26, 1901; 11757, Dec. 13, 
1901; 12136, Apr. 10, 1902; 12213, Mar. 13, 1902; 12219, Mar. 15, 
1902; 12286, Mar. 22, 1902; 12400, Apr. 10 and Aug. 18, 1902, and 
12456, Apr. 18, 1902. 

XIV E 9 a (14). It is an accepted principle of interpretation that 
under those articles of war which prescribe the sentence of dismissal 
upon conviction no punishment in addition to dismissal is authorized. 
Held therefore that all punishment in addition to dismissal should be 
disapproved upon conviction of an offense under the tliirty-eighth 
article of war {R. 14, 330, Mar., 1865); or of the sixty-first article of 
war {R. 4, 283, Oct., 1863; 9, 672, Oct., 1864; U, 330, Mar., 1865; 
C. 25078, June 9, 1909); or of the sixty-fifth article of war {R. 8, 296, 
Apr., 1864). 

XIV E 9 a (15). The fact that a sufficient cause of challenge exists 
against a member but, through ignorance of his rights, is not taken 
advantage of by the accused, or if asserted is improperly overruled 
by the court, can affect in no manner the validity in law of the pro- 
ceedings or sentence, though it may sometimes properly furnish 
occasion for a disapproval of the proceedings, etc., or a remission 

^ See an opinion to this effect, published, as approved by the Secretary of War, in 
G. O.,90, WarDept., 1872. 



DISCIPLINE XIV E 9 a (l6). 563 

in whole or in part of the sentence.' R. 8, 534, June, 1864; 9, 258, 
June, 1864; 20, 18, Oct., 1865; 37, 315, 491, Feh. and Apr., 1876; 39, 
240, Oct., 1877. 

XIV E 9 a (16). Where "reasonable cause" is, in the judgment 
of the court, exhibited, the party is entitled to some continuance 
under article 93. A refusal, indeed, by the court to grant such con- 
tinuance will not invalidate the proceedings, but, if the accused has 
thus been prejudiced in liis defense, may properly constitute good 
ground for disapproving the sentence,^ or for mitigating or partially 
remitting the punishment. R. 22, 502, Dec. 1866; 33, 616, Dec, 
1872; 39, 13, May, 1876. 

XIV E 9 a (17). A sentence of penitentiary confinement (ninety- 
seventh article of war), in a case of a purely military offense is 
wholly unauthorized and should be disapproved. Effect can not be 
given to such a sentence by commuting it to confinement in a mihtary 
prison, or to some other punishment which would be legal for such 
offense. R. 24, 202, Jan., 1867;^ 27, 299, Oct., 1868; 30, 603, Aug., 
1870; C. 439, Oct., 1894- Nor, in a case of such an offense, can a 
severer penalty — as death — be commuted to confinement in a 
penitentiary. R. 11, 413, Feh., 1865; C. 20994, Jan. 26, 1907. 

XIV E 9 b (1). While avproval gives life and operation to the sen- 
tence, disapproval, on the other hand, quite nullifies the same. A 
disapproval of the sentence of a court-martial by the legal reviewing 
authority is not a mere expression of disapprobation, but a final 
determinate act, putting an end to the proceedings in the particular 
case and rendering them entirely nugatory and inoperative ; and the 
legal effect of a disapproval is the same whether or not the officer 
disapproving is authorized finally to confirm the sentence. But to 
be thus operative, a disapproval should be express. As frequently 
remarked in the opinions of the Judge Advocate General, the mere 
absence of an approval is not a disapproval, nor can a mere reference 
of the proceedings to a superior without words of approval operate as 
a disapproval of the sentence.^ The effect of the disapproval, wholly, 
of a sentence is not merely to annul the same as such but also to 

Erevent the accruing of any disability, forfeiture, etc., which would 
ave been incidental upon an approval. R. 26, 568, June, 1868; 
30, 497, July, 1870; 32, 1, Dec., 1870; 50, 121, Mar., 1886; P. 60, 
36, June, 1893;^ C. 2195, Apr., 1896. 

Where the original reviewing officer disapproves a sentence, to the 
execution of which the confirmation of superior authority is made 

^ See Opinion of the Attorney General of January 19, 1878 (15 Op. 432), in which 
the opinion, expressed by the Jud2;e Advocate General in the most recent of the 
cases upon which this paragrapli is based — that the fact that one of the charges upon 
which the accused was convicted was preferred by a member of the court who also 
testified as a witness on the trial (but who, though clearly subject to objection, waa 
not challenged by the accused), could not affect the validity of the sentence of dis- 
missal after the same had been duly confirmed — is concurred in by the Attorney 
General. And, to a similar effect, see Keyes v. United States, 15 Ct. Cls., 532. 

In G. C. M. O. 88, Dept. of Dakota, 1878, the point is noticed that where a challenge 
interposed by the accused has been improperly disallowed, a subsequent plea of guilty 
is not to be treated as a waiver of the advantage to which he may be entitled by reason 
of the improper ruling. 

2 See G. C. M. O. 35, War Dept., 1867; do. 128, Hdqrs. of Army, 1876; G. O. 24, Dept. 
of Arizona, 1874. 

^ See 16 Op. Atty. Gen. 312, where it is remarked that it is not a legal disapproval 
of a conviction or sentence for the original reviewing officer, in forwarding the pro- 
ceedings for the action of superior authority, to indorse upon the same an opinion to 
the effect that the finding is not sustained by the evidence. 



664 DISCIPLINE XIV E 9 b (i) (a). 

requisite by the articles of war^as where (in time of peace) the 
department commander, who has convened the court in the case of 
an officer, disapproves a sentence of dismissal adjudged thereby — 
the sentence bemg nullified in law, there remains nothing for the 
superior authority to act upon and to transmit the proceedings to 
him for action will be improper and unauthorized. It. 3, 537, Aug., 
1863; r, Jf79, Apr., 1864; 30, 497, July, 1870; 32, 630, May, 1872. 

A reviewing officer can not disapprove a sentence and then proceed 
to mitigate or commute the punishment, since, upon the disapproval, 
there is nothing left in the case upon which any such action can be 
based. R. 22, 456, Oct., 1866. 

It is quite immaterial to the legal effect of a disapproval whether 
any reasons are given therefor, or whether the reasons given are well- 
founded in fact or sufficient m law. R. 28, 198, Oct., 1868. 

XIV E 9 b (1) {a). Held that disapproval of a finding of guilty has 
the effect of an acquittal.^ C. 2195, Apr. 4, 1896; 12168, Mar. 10, 
1902; 12375, Apr. 23, 1902. 

XIV E 9 b (2). The formal disapproval by the reviewing authority 
of an acquittal is a naked nonconcurrence in the conclusions of the 
court, and is without legal effect upon the status of the accused. He 
still remains legally not guilty. C. I4I8, June, 1895. 

XIV E 9 c. Where a sentence in excess of the legal limit is divisible, 
such part as is legal may be approved and executed. Thus where a 
sentence of an inferior court imposes a fine or forfeiture beyond the 
limit of the eighty-third article of war, the sentence may be approved 
and executed as to so much as is within the limit. ^ P. 55, 349, Sept., 
1892; 59, 27, Apr., 1893; C. 439, Oct., 1894; 7363, Mar., 1899. 

XIV E 9 d (1) (a). The fact that a soldier has been held in arrest 
for an unreasonably protracted period before trial, or while awaiting 
the promulgation of his sentence, is a good ground for a mitigation 
of his punishment. R. 35, 504, July, 1874- 

XIV E 9 d (1) (&). In a case where a brief mutiny (twenty-second 
article of war) among certain soldiers of a colored regiment was 
clearly provoked by inexcusable violence on the part of their officer; 
the outbreak not having been premeditated, and the men having 
been, prior thereto, subordinate and well conducted; advised that a 
sentence of death imposed by a court-martial upon one of the alleged 
mutineers should be mitigated, and the officer himself brought to 
trial. R. 26, 64, Oct., 1867. Similarly advised in the cases of sen- 
tences of long terms of imprisonment imposed upon sundry colored 
soldiers, who (without previous purpose or revolt) had been provoked 
into momentary mutinous conduct by the recklessness of their officer 
in firing upon them, and wounding several, in order to suppress certain 
insubordination which might apparently have been quelled by ordi- 
nary methods.^ R. 25, 51, 75, 160, Aug.-Nov., 1867. 

' A disapproval of a sentence by the proper reviewing authority is "tantamount to 
an acquittal by the court." 13 Op. Atty. Gen. 460. 

•^ See Circ. No. 12, A. G. 0. 1892. 

^ Enlisted men, tried and sentenced for insubordinate conduct, where such conduct 
has been induced or aggravated by illegal corporal punishments inflicted upon them 
by superiors, have commonly had theii' sentences remitted or mitigated, or altogether 
disapproved. See G. O. 49, 76, Northern Dept., 1864; do. 40, Dept. of the East, 1868; 
G.C.M.O.90,id.,1871; G. 0. 63, Dept. of Dakota, 1868; do. 76, id., 1871; G. C.M.O. 
45, id., 1880; do. 93, Dept. of the South, 1873. 



DISCIPLINE XIV E 9 e. 565 

XIV E 9 e. Action taken by a reviewing officer upon the proceed- 
ings and sentence of a court-martial may be recalled and modified 
h^ore it is published, and the party to be affected is duly notified of 
the same. After such notice the action is beyond recall. An 
approval can not then be substituted for a disapproval, or vice versa. 
R. 8, 556, June, 1864; 31, 15, Oct., 1870; P. 31, 96, and 125, Mar., 
1889; 40, 220, and 353h, Apr., 1890; 60, 179, June, 1893; C. 11509, 
Nov. 8, 1901; 17386, Jan. I4, 1905; 19854, June 29, 1906; 23140, Dec. 
9,1911. 

XIV E 9 f (1). When a legal sentence of dismissal has been legally 
confirmed and executed, Jield that the reviewing officer's power over 
the case is exhausted. This is equally true whether the reviewing 
officer is the President or the commanding general in time of war. 
The reviewing authority can not recall, revoke, rescind, or modify 
the official act of confirmation, or the order which is the evidence of 
it. The reviewing authority as such is functus officio. Held, also that 
after the sentence has been executed that the case is beyond the 
reach of the pardoning power. ^ So far as Executive power is con- 
cerned, the dismissal is final and irreversible. Held that as the law 
has pro\dded no court of appeal or other revisory authority, the only 
manner in which a dismissed officer can reenter the service is by a 
new appointment.2 R. 20, 302, Jan. 8, 1866; 26, 462, Feb. 19, 1868; 
28, 457, Mar. 27, 1869; 29, 575, Jan. 8, 1870; 30, 318, 323, 420, May 
7, 1870, and June 20, 1870; 34, 634, Nov. 29, 1873; 36, 274, 330, Feb. 
23, 1875, and Mar. 22, 1875; 38, 243, Aug. I4, 1876; 39, 238, 242, 248, 
Oct. 22 and 23, 1877; 55, 221, Dec. 19, 1887; C. 7509, Jan., 1900; 
13400, Oct. 7, 1902; 15712, Jan. 4, 1904; 16710, Aug. 9, 1904; 16867, 
Sept. 9. 1904; 22048, Sept. 7, 1907; 23071, Apr. 11, 1908. 

XIV E 9 g. It is within the authority of a reviewing officer, in a 
case in which a soldier of his command, has been sentenced to con- 
finement in a penitentiary, to designate a particular penitentiary 
within such command as the place of confinement.^ P. 63, 330, 
Jan., 1894. 

XIV E 9 g (1). Where the sentence directs confinement at hard 
labor "in such place as the reviewing authority may direct," or 
words to that effect, the reviewing authority may, the offense war- 
ranting it, designate a penitentiary; but if m such a case he desig- 
nates a military post as the place of confinement, the place of con- 
finement can not, pending its execution at the post, legally be changed 
to a penitentiary. C. 1875, Nov., 1895; 9558, Jan. 8, 1901; 10828, 
Oct. 28, 1901; 11756, Dec. 13, 1901; 14495, Apr. 16, 1903; 14509, Apr. 
20, 1903. 

XIV E 9 h. It is not adding to the punishment, and is authorized 
at military law, to change the place of confinement of a prisoner, if 
such a change is required by the exigencies of the service, provided 
that no more severe species of confinement than that contemplated 
in the sentence is enforced after the transfer. R. 21, 49, Nov., 1865; 
39, 659, Sept., 1878; 41, 123, Feb., 1878; C. 14495, Apr. 16, 1903; 
14509, Apr. 20, 1903. 

XIV E 9 i. Although, in adjudging a reprimand, it is generally 
intended by a court-martial to impose a mild punishment, the quality 

» Ex 'parte Garland, 4 Wallace, 333, 381, and 12 Op. Atty. Gen., 548. 

2 See 4 Op. Atty. Gen., 274 and 306; 6 id. 369 and 514; 7 id. 99; 12 id. 548; 14 id. 449. 

^ See A. R. 982 of 1910, which makes approval of Secretary of War necessary. 



566 DISCIPLINE XIV E 9 k. 

of the reprimand is nevertheless left to the discretion of the authority 
who is to pronounce it, and it is open to him to make it as severe as 
he may deem expedient without being chargeable with adding to the 
punishment. R. 33, 498, Nov., 1872. 

XIV E 9 k. Where a court-martial convened by a department com- 
mander for the trial of an officer sentences the accused, upon convic- 
tion, to the punishment of a loss of files or steps in the list of officers 
of his rank, the approval of the commander is sufficient to give full 
effect to the sentence, and no action by superior authority can add 
anything to its effect or conclusiveness. The code does not, as in the 
case of a sentence of dismissal, render a confirmation by the Presi- 
dent essential to the execution of such a punishment; and the fact 
that the same involves a change in the Army Register does not make 
requisite or proper a revision of the case at the War Department. 
All that is called for, upon the approval of such a sentence by the 
commander, is simply to notify the Secretary of War thereof by for- 
warding a copy of the order promulgating such approval. The pro- 
ceedings (or tiieir substance), as affecting officers other than the 
accused, may then well be republished in orders from the Adjutant 
General's Office. R. 36, 134, Dec, 1874; 37, 83, Oct., 1875; 43, 286, 
Apr., 1880. 

XIV E 9 1. The record should exhibit, at the end of the proceedings 
of the court, the action thereon — approval or disapproval, etc. — of the 
reviewing authority. R. 2, 650, June, 1863. This, though it has 
sometimes been indorsed on the outside of the record, is preferably 
and customarily written and signed within the record on a page follow- 
ing the authenticated judgment or other final proceeding of the court. 
R. 4, 428, Bee, 1863. Where several cases are tried by the same 
court, the action of the reviewing officer should be entered in the rec- 
ord of each trial; merely to indorse it upon the last of a series of cases 
would be irregular as not a compliance with the regulation. R. 19, 
336, Jan., 1866. So it is irregular for the reviewing officer, in lieu of 
writing and subscribing his action in the record, to annex to it or file 
with it a copy of a general order promulgating the proceedings and his 
action thereon. R. 1 , 412, Nov., 1862. Where the proceedings are to be 
forwarded to higher authority for final action on the sentence, a mere 
reference, as by the words — "respectfully referred, or forwarded, to 
the President " (or other superior) "for action," etc., is incomplete and 
irregular. In such a case the original reviewing officer should state 
his approval, etc., in full and formal terms. R. 4, 337, Nov., 1863; 
7, 132, Feb., 1864; C.,2844, Jan., 1897. 

XIV E 9 m. The reviewing authority should properly authenticate 
the action taken by him in any case by subscribing in his own hand 
(adding his rank and command, as indicating his legal authority to 
act) the official statement of the same as written in or upon the record. 
Impressing the signature by means of a stamp is not favored. R. 4, 
567, Jan., 1864; ^2, 513, Bee, 1866, and 568, Jan, 1867. 

XIV E 9 n (1). When a trial by court-martial results in an ac- 
quittal or when the sentence does not contain confinement, held that 
tne prisoner may, pending a review of the proceedings, be released 
from confinement. C. 12928, July 8, 1902. 

XIV F 1. When the proceedings of general courts-martial were 
promulcjated in general court-martial orders no difficulty was expcri- 
lenced m making the date of the order the same as the date of the 
action of the reviewing authority. This is often not practicable when 



DISCIPLINE XIV F 2. " 567 

the promulgation is in special orders. As the sentence should com- 
mence on the date of the action thereon by the reviewing authority, 
this date should appear in the order of promulgation. C. 1681, 
Aug. 1891. 

XIV F 2. Where a general court-martial has had two presidents, it 
is immaterial whether the first or the second is mentioned m describing 
and identifying the court in the caption of the order promulgating its 
proceedings. It is not indeed necessary to indicate the president at all. 
R. 13, 324 Feb., 1865. Nor is it necessary that such an order should 
set forth the specifications to the charges; nor — though this is usual, 
where the busmess of the court is completed — that it should formally 
dissolve the court. R. 3, 84, June, 1863. An order of promulgation, 
indeed, is a mere/orw, habitual as a means of communicating the pro- 
ceedings or their result to the army, for the sake of convenience and 
example, and of making a summary memorandum of the same, but 
not necessary to the validity of proceedings or sentence.* Though 
no such order is issued in a case, the proceedings or sentence in the 
same will be formally complete and fully operative, if the official action 
thereon of the reviewing authority be duly indorsed upon or appended 
to the record, and actual or constructive notice thereof is given to the 
party affected. R. 32, 102, Nov., 1871; C. 1226, Apr., 1895; 3810, 
Jan. 27, 1898; 12623, May 26, 1902. 

XIV F 3. The officer authorized to act upon the sentence is the 
proper authority to promulgate by order the proceedings of the court 
and his action thereon. If the regiment of the accused has moved 
outside the limits of the command at the date of such promulgation, 
a copy of the order promulgating the findings and sentence should 
be forwarded to the commanding officer of the accused. C. 5235, 
Nov., 1898. 

XIV G. Where a soldier, while undergoing a sentence of confine- 
ment, was, by mistake, released by the post commander before the 
expiration of his legal term, Tield that the department commander by 
whom the sentence had been approved was legally authorized to order 
the soldier to be recommittea for the purpose of completing his 
punishment. R. 27, 429, Bee, 1868. 

XIV H 1. In cases, however, of sentences of dismissal and of death, 
imposed in time of peace, and of some death sentences adjudged in 
time of war, as also of all sent:nces "respecting general officers," 
while the convening officer (or his successor) is the original reviewing 
authority, with the same power to approve or disapprove as in other 
cases, yet, inasmuch as it is prescribed by articles 105, 106, 108, and 
109 that the sentence shall not be executed without the confirmation 
of the President, the latter becomes in these cases thej^waZ reviewing 
officer, when — the sentence having been approved by the commander 
(for, if disapproved by him, there is nothing left to be acted upon by 
the superior) — the record is transmitted to him for his action. A 
similar division of the reviewing function exists in cases in which 
sentences are approved, but the execution of the same is suspended, 
and the question of their execution referred to the President, under 

* The insertion, in an order of publication, of the proceedings had upon a reassem- 
bling of the court tor a revision of its findings or sentence, though at one time occa- 
sionally resorted to, is now unusual. Such an addition can hardly be pertinent except 
where it is designed as a basis for special comments, on the part of the reviewing 
officer, upon the action of the court in connection with the matter of the revision. 



668 " DISCIPLINE XIV H 1 a. 

article 111. The same function is also shared between inferior and 
superior commanders, under article 107, in cases in which sentences 
are imposed by division or separate-brigade com*ts. 

Where a general court-martial is convened directly by the President 
as Commander in Chief, he is of course both the original and final 
reviewing authority. But when final action has been taken by him 
in any of these cases, his function as reviewing or confirming authority 
is exhausted. Where indeed he has approved or confirmed a punish- 
ment, and the same remains in any part unexecuted, he may of course 
exercise the quite distinct power of pardon; but an approval or dis- 
approval once given by him, and duly notified to the accused — 
though his action may afterwards be discovered to have worked an 
injustice — is beyond his power to revise, reverse, or modify. B. 9, 
U, May, 1864; 38, 104, June, 1876; 42, 91, Dec, 1878. 

XIV H 1 a. Article 106 does not require that the confirmation of 
the sentence shall be signed by the President^ nor does it prescribe 
any form in which the confirmation shall be declared. Held, there- 
fore, that a written approval of a sentence of dismissal authenticated 
by the signature of the Secretary of War, or expressed to be by his 
order, was a sufficient confirmation within the article; the case being 
deemed to be governed by the well-established principle that where, 
to give effect to an executive proceeding, the personal signature of the 
President is not made essential by law, that of the head of the depart- 
ment to which the subject belongs shall be sufficient for the purpose; 
the assent of the President to his order or direction being presumed, and 
his act being deemed in law the act of the President whom he repre- 
sents.^ R. 9, 44, May, 1864; 23, 654, Aug., 1867; 37, 650, June, 
1876; 38, 107 and 243, June and Aug., 1876; 39, 296, Nov., 1877; 
41, 25, Se^t, 1877; ^^, 209, Mar., 1879; 43, 106, Dec, 1879. Held, 
therefore, in a case which involved dismissal of an officer and which 
contained no entry of the action of the President, that the order pub- 
lishing the case and setting forth his action thereon was sufficient 
and legal evidence of such action.' P. 22, 436, Feb., 1888. 

XIV H 2. Although the act of March 3, 1865 (13 Stat., 489) (section 
1230 R. S.), provides that if the sentence of the court be not one of 
death or dismissal the order of dismissal by the President shall be 
void — i. e., the party tried shall be restored to his office — yet lield, 
in a case in which the court acquitted the accused, that the Presi- 
dent possessed the authority, vested in reviewing officers in all other 
cases tried by court-martial, of returning the proceedings to the 

• This view has been sustained by an opinion of the Attorney General of June 6, 
1877 (15 Op., 290), and by a report of the Judiciary Committee of the Senate of Mar. 
3, 1879 (Rep. No. 868, 45th Cong., 3d sees.). 

This siibject has been more recently considered by the U. S. Supreme Court in a 
succession of cases (Runkle D. U. S., 122 U. S., 543; U. S. v. Page, 137 U. S., 673; U. S. 
V. Fletcher, 148 U. S., 84), the effect of which is that a statement of approval of a sen- 
tence of dismissal, authenticated by the Secretary of War, is legally sufficient, pro- 
vided that it appear, by clear presumption therefrom, that the proceedings have actu- 
ally been submitted to the President. 

In an opinion of the Attorney General of Apr. 1, 1879 (16 Op., 298), it was held that 
a confirmation of a sentence of dismissal of an officer, though irregularly and unduly 
authenticated, would be ratified by an appointment by the President of another 
officer to fill the supposed vacancy, and that the appointment thus made would be 
valid and operative. 

2 See 2 Op. Atty. Gen., 69; 7 id., 472; Williams v. V. S., 17 Peters, 152, in connec- 
tion with Runkle v. U. S., 122 U. S., 543. 



DISCIPLINE XIV H 3. 569 

court for revision, and was therefore empowered to reassemble the 
court for a reconsideration of the testimony, on the ground that the 
same did not, in his opinion, justify the acquittal. R. 19, 191, Nov., 
1865. 

XIV H 3. A discharged soldier, serving a sentence of confinement 
in a State or Territorial penitentiary, still remains under mUitary 
control, at least so far that his sentence may, by the President, be 
remitted, or may be mitigated — as for example to confinement in a 
mihtary prison or at a mifitary post. P. 17, 216, Jan., 1887; 29, 209, 
Jan., 1889; 63, 370, Feb., 1894. 

XIV H 4. The word "approved," employed by the President in 

{)assing upon a sentence of aismissal, Tiela, to be substantially equiva- 
ent to "confirmed," the word used in article 106. In practice the 
two words are used indifferently in this connection. R. 4U ^^y Sept., 
1877. 

XIV H 5. Held that the War Department has no authority to cor- 
rect the findings or sentence of a court-martial (C. 1624, Dec. 26, 1895; 
14260, Mar. 25, 1903); or add to the sentence (C. 187, June, 1895; 
7450, Dec, 1899; 14495, Apr. 17, 1903; 14509, Apr. 20, 1903). _ 

XIV I. Held that the reviewing authority may, when taking ac- 
tion on a case, express his formal disapprobation of the neglect of the 
court to do that which he, the reviewing authority, considers its duty 
in connection with the trial of the case, even if such remarks might 
be interpreted as a censure or reprimand of the accused.^ C. 1426,0 
Mar. 25, 1903. 

XIV K 1 . New or second trials have been of the rarest occurrence 
in our military service. They have only been had, and are only au- 
thorized, where the sentence adjudged upon the first trial has been 
disapproved by the reviewing authority and the accused has asked for 
a second trial. It was held at an early period by Attorney General 
Wirt ^ that the prohibitory provision of the Articles of War (now con- 
tained in art. 102) that "no person shall be tried a second time for 
the same offense," did not apply to a case in which the accused him- 
self requested a new trial, the objection to such trial being deemed to 
be subject to be waived by the consent and action of the party tried. 
The privilege of applying for and being allowed a retrial — for it is not 
a right, since the trial may be granted or denied at the discretion of the 
proper superior — has naturally been but seldom exercised; parties 
convicted and sentenced being in general satisfied that the proceed- 
ings in their cases should be terminated by the disapproval, on what- 
ever grounds the same may be based. The principal instances of new 
trials in our practice are that of Capt. Hall (in whose case Mr. Wirt's 
opinion was given), and those of which the proceedings are pubUshed 
in General Orders 18, War Department, 1861, and General Orders 8, 
9, and 26, First ^lilitary District, 1869. After a sentence has been 
duly approved and has taken effect, the granting of a new trial is, of 
course, beyond the power of a military commander or the President.^ 
R. 37, 492, Apr., 1876; 39, 233, Oct., 1877; 43, 423, and 44, 171, Oct., 
1880; C. 5654, July 24, 1899. 

1 See General Court-martial Orders 46, A. G. O., Oct. 15, 1883. 

2 1 Op. Atty. Gen., 233. And see 6 id., 205. 

^ That a witness testified without being sworn is not ground for new trial, when 
no ojection was made at the trial and witness was cross-examined, see Moore v. State, 
33S. W. Kept., 1046. 



570 DISCIPLINE XV A. 

XV A. A sentence imposing confinement for six months and the 
reimbursement of the United States for expenses incurred in the ap- 
prehension of the accused and his return to his station was disap- 
proved by the convening authority, upon the ground that the items 
of the amounts of expenditure had not been proved; lield, that such 
disapproval can not be concurred in by this department. The tech- 
nical requirement suggested, viz, that the record should contain proof 
of all expenditures by the Government in this behaK in order to sus- 
tain the sentence, would hamper most materially the administration 
of mihtaiy justice. C. 18764-A, Nov. 23, 1909. 

XV B. While reasonable facilities for procuring such counsel as he 
may desire should be afforded an accused, his claim must be regarded 
as subordinate to the interests of the service. Thus, where an accused 
officer apphed to the department commander who had convened the 
court, to authorize a particular officer whom he desired as counsel to 
act in that capacity, and this officer could not at the time be spared 
from his regular duties without material prejudice to the public inter- 
ests, lield, that the commander was justified in denying the application, 
and further that the legality of the subsequent proceedings and sen- 
tence in the case was not affected by such denial. R. 32, 519, Apr., 
1872. 

XV C. Unless it clearly appears to the contrary on the face of the 
record, it is in general to be presumed therefrom, not only that the 
court had jurisdiction in the case, but also that the proceedings were 
sufficiently regular to be valid in law.^ R. 12, 353, Feh., 1865; C. 
16101, Apr. 21, 1904. 

1 However desirable it may have been, in view of the numerous and serious defects 
frequently occurring in the records of courts-martial during the War of the Rebellion, 
and in order to induce a greater precision and uniformity in the preparation of such 
records, to treat (as was not infrequently done) the more grave of these defects aa fatal 
to the validity of the proceedings or sentence, it is conceived that the same, in general, 
might properly have been regarded, and may now be regarded, as only calling for, or 
justifymg, a disapproval of the proceedings. It is the effect of the ruling of the civil 
courts that where the court on any trial was legally constituted, had jurisdiction of 
the case, and has imposed a legal sentence or judgment, every reasonable intendment 
will be made in favor of the regularity of its proceedings, and even where the same 
are clearly irregular, the validity of the result will not be deemed to be affected, pro- 
vided no statutory provision has been violated. See Hutton v. Blaine, 2 Sergt. & 
Rawle, 75, 79; Moore v. Houston, 3 id., 197; Trinity Church v. Higgins, 4 Robt., 1; 
Edwards v. State, 47 Miss., 581. And it is further held that the regularity or validity 
of the minor details of the proceedings may be shown by evidence outside the record. 
Van Deusen v. Sweet, 51 N. Y., 378. Similarly — it is believed — no omission or error 
in a record of court-martial, not in contravention of express statute, should, as a general 
rule, be regarded as absolutely invalidating the proceedings where there remains 
enough in the record fairly to warrant the presumption that the legal requirements 
have been complied with, or where the reviewing authority can supply the defect from 
his own official knowledge, or from current orders or other satisfactory evidence readily 
available to him. Thus, where no copy of the convening order accompanies the pro- 
ceedings, but the reviewing authority, from the fact of having issued it himself or from 
the records of the command or otherwise, is officially apprised that the court was duly 
convened, the proceedings are not to be treated as fatally defective, but — the court 
appearing in fact to have been constituted and to have acted pursuant to the order — 
may be regarded as valid in law though imperfectly recorded. Where, indeed, the 
record discloses in the proceedings of a general court-martial an irremediable defect in 
a vital particular, as the fact that the court was composed of but four members, the 
proceedings and sentence, if any, must be held inoperative, since the statute lam — 
article 75 — has fixed five members as the legal minimum for such a court. But where 
the defect occurs in a less material feature, or is one of form only, the same, while it 
may, if of a grave character, properly warrant a disapproval of the proceedings — in case 
it can not be removed by a revision by the court on being reassembled for the purpose — 



DISCIPLINE XV C 1. 571 

XV C 1. The record of a court of justice consists of two parts, 
which may be denominated the substantive and the judicial portions. 
In the former — the substantive portion — the court records (makes a 
record of) or attests its own proceedings and acts. To this (record or 
attestation) unerring verity is attributed by the law, wMch will 
neither allow the record to be contradicted in these respects nor the 
facts thus recorded or attested to be proved in any other way than 
by the production of the record itself or by copies proved to be true 
in the prescribed manner.^ The Supreme Court of the United States 
has repeatedly held that a court-martial is a court possessing ample 
and exclusive jurisdiction to try and determine a certain class of cases, 
and that its functions are those of a court and its acts judicial pro- 
ceedings, etc.2 These proceedings and acts are all recoraed, and the 
record thus made is ultimately filed in its proper place as the record 
of the judicial proceedings had. Where, therefore, after a record of a 
general court-martial had been duly acted upon and the sentence (dis- 
missal of an officer) executed, the dismissed officer filed affidavits to 
the effect that the testimony of one witness had not been made a part 
of the record (which in fact did not show that any such witness tes- 
tified) and asked that the sentence be set aside as void, it was held 
that the record could not be thus contradicted or impeached, or the 
validity of the sentence questioned.^ C. 6654, May, 1899. 

XV D 1, Charges are regularly and properly referred to a court- 
martial for trial by the officer who has constituted it (or his superior) , 
and a court-martial may in general properly decline to entertain 
charges otherwise submitted. The vafidity, however, of the pro- 
ceedings or sentence of a court-martial in any case will not be affected 
by the circumstance that the charges were in fact irregularly referred 
to it by a commander inferior to the convening officer and without 
having been approved by him. R. 22, 502, Dec, 1866; 26, 167, Nov., 
1867. 

XV D 2. Held that the fact that the order convening a court- 
martial was dated on a Sunday did not affect the validity of the pro- 
ceedings in a case tried by the court under such order. R. 37, 317, 
Feb., 1876. . ' . . 

XV D 3. It is not a material objection to the vahdity of the pro- 
ceedings or sentence that the regiment or corps of a member of the 
court or of the judge advocate is erroneously stated in the order 

will not in general, it is held, justify the reviewing authority in pronouncing the pro- 
ceedings to be void, or in treating them as necessarilv without legal effect. C. 11594, 
Jan. 3 and Mar. 26, 1902; 11794, Dec. 19, 1901; 11799, Dec. 20, 1901; 11831, Dec. 30, 
1901. 

1 Best, Principles of Evidence, p. 578. 

» See Dynes v. Hoover, 20 Howard, 65; Ex parte Reed, 100 U. S., 13; Smith v. Whit- 
ney, 116 id., 167; Johnson v. Sayre, 158 id., 109; Swaim t;. U. S., 165 id., 561. 

' Seetheopinionof the Attorney General in this case, published in G. O. 21, A.G. O., 
1900, the latter portion of which, referring to the record of the court-martial, reads as 
follows: 

"The record is that which the court certify to have transpired on the trial, and 
embodies the action of the court. The fact that the court in due and legal form 
announces that it did so and so, or that so and so transpired, makes that the record 
and the fact, and no one except the court itself can lawfully alter that record. If it 
were to be held otherwise, there is not a record filed in the War Office that could not 
be subject to attack by ex parte affidavits and that, too, at a time when the officers of 
the court might be dead or scattered to the ends of the earth and unable to defend 
the solemn certificate which they made; and all the judgments of courts-martial as 
filed and acted on would be open to perpetual contradiction on subsequent assertions 
of interested parties which it would be impossible to meet or disprove." 



572 , DISCIPLINE XV D 4. 

convening the court, provided the description given is sufficient to 
identify the officer. R. 35, 433, June, 1874- 

XV D 4. Though the injunction of article 100, as to the direction 
to be added to the sentence, should, of course, regularly be complied 
with, a failure so to comply will not affect the validity of the punish- 
ment of dismissal adjudged by the sentence.^ R. 22, 508, Dec, 1866; 
27, 652, May, 1869. 

XV E 1. The record of a court-martial must show affirmatively 
whatever is made by statute essential to its jurisdiction and the 
legality of its proceedings, ^ for example, that the members and judge 
advocate were sworn as enjoined by the eighty-fourth and eighty- 
fifth articles of war. So, repeatedly held that if the record failed to 
show that the court and judge advocate were sworn and the omis- 
sion could not be supplied by proceedings on revision the sentence 
was void; but that if the court had not been dissolved the original 
reviewing authority or liis successor in command, the record having 
been transmitted to him either before or after his final action on the 
sentence, could legally reconvene the court to supply the omission 
in the record, if there was in fact an omission, the only purpose of 
such revision being to make the record conform to the actual facts; 
in other words, to speak the truth. R. 1, 487, Dec, 1862; 2, 154, 
155, Apr., 1863; 9, 653, Sept., 186^; 11, 93, Nov., 1864; 19, 336, 
Jan., 1866; C. 9600; Jan. 9, 1901; 15330, Oct. I4, 1903; 22163, 
Sept. 30, 1907. 

XV E 2. Where an officer, detailed as a member of a general court- 
martial, was duly relieved by order therefrom, but continued not- 
withstanding to sit upon the court during a trial, taking part in the 
findings and sentence, held, that the sentence should properly be set 
aside as null and void.^ P. 4I, 39, May, 1890. 

. XV E 3. Where a court-martial excused its judge advocate and 
required its junior member to act as judge advocate in his stead, 
hetd that its action was wholly unauthorized and that its proceedings 
were properly disapproved.* It is only the convening authority 
who can relieve or detail a member or a judge advocate. R. 28, 198, 
Oct., 1868. 

XV E 4. But where, after the reviewing commander had approved 
a sentence in general orders and the court had been dissolved, it was 
discovered that there was & fatal defect in the proceedings, held that 
the commander would properly issue a supplemental order declaring 
the proceedings a nuffity and the original order inoperative and with- 
drawn on account of the defect.^ R. 49, 308, Aug., 1885; P. 31, 

' Note the action taken in the case published in G. C. M. O. 27, War Dept., 1872. 
The declaration of the article that after the publication ' ' it shall be scandalous for 
an officer to associate with" the dismissed officer, though it has, as in cases published 
in G. O. (A. and I. G. O.) of May 13, 1820, and G. O. 168, Dept. of the Missouri, 1865, 
been incorporated in the sentence, is not intended to be and should not be so in- 
corporated. 

See G. O. 172, Hdqrs. of the Army, A. G. O., Sept. 29, 1899. ■ 

2 Runkle v. U. S., 122 U. S., 543. 

3 See G. C. M. 0. 20, Dept. of California, 1890, published after the date of this 
ruling. 

* See G. C. M. O. 62, War Dept., 1874. 

* See G. C. M. O. 23, Dept. of Dakota, 1888, setting aside void sentences and re- 
storing to duty the prisoners, both of whom were serving confinement and had been 
under the terms of the void sentences dishonorably discharged. See also G. C. M. 
O. 20, Dept. of California, 1890, where a void sentence was set aside, the dishon- 
orable discharge 'canceled," and the prisoner restored to duty. 



DISCIPLINE XV E 5. 573 

126, Mar., 1889; 4I, 39, May, 1890; 42, 439, Sept., 1890; C. 4642, 
Sept. 14, 1898; 6325, Nov. 16, 1898; 6484, Dec. 9, 1898; 6121, Mar. 
24, 1899; 18764, Jan. 24, 1908. 

XV E 5. A court-martial declined to receive a written statement 
from an accused party on the ground that as he had offered himself 
as a witness he had had a sufficient opportunity to present such 
evidence to the court as he desired them to consider. Held, that the 
court had no authority to abridge the right of the accused to submit 
a written statement, and its refusal rendered its proceedings in that 
case fatally defective. 0. 17312, Dec. 22, I9O4. 

XV E 6. Held that it is a fatal defect in a trial by court-martial 
for the court not to make any finding on the charge. C. 6166, Oct. 18, 
1898; 5187, Oct. 20, 1898. 

XV E 7. Held that a sentence awarded by a court which was with- 
out jurisdiction is void, and can not operate to separate a soldier from 
the service, and that in the particular case under consideration a 
soldier remained in the Volunteer service until the date of muster out 
of the organization to which he belonged, and that his status^ at the 
date of his separation from the service was that of a soldier in con- 
finement under charges. C. 13103, Aug. 7, 1902. 

XV E 8. Held, that court-martial proceedings are void when the 
order assuming to convene it is null and void. C. I646, Sept. 6, 1896, 
and 1499, July 17, 1896. 

XV E 9. Held that a record which fails to show that the members 
of the court and judge advocate were duly sworn is fatally defective. 
Held, further, that the fatal defect is not remedied upon the return 
of the record of revision, if the judge advocate and tne president of 
the court make affidavits to the effect that the court and the judge 
advocate were duly sworn, as such affidavits are not a part of the 
proceedings of the court on revision. Held, further, in this particular 
case where the soldier had been dishonorably discharged pursuant to 
this sentence that the sentence should be set aside and the discharge 
issued thereunder be recalled. C. 9600, Jan. 9, 1901; 8197, May 3, 
1900; 16330, Oct. I4, 1903. 

XV E 10. Where the record of trial by court-martial failed to show 
that the accused was allowed an opportunity to exercise his right of 
challenge; held, that the proceedings were fatally defective and the 
sentence was void. C. 13297, Sept. 11, 1902; 22163, Sept. 30, 1907; 
18764, Oct. 23 and Nov. 17, 1907. 

XV Ell. Where on trial by court-martial for fraudulent enHst- 
ment, it was omitted to state in the charges that the party tried had 
received pay and allowances, held that the proceedings were fatally 
defective as not constituting an offense. Held, further, that in view 

If, however, the court has not been dissolved it may be reconvened to amend its 
record to conform to the actual facts — that is, to make it speak the truth. See par. 
19, S. O. 99, A. G. O., 1900, in which the following is promulgated: "By direc- 
tion of the President the sentence in the case * * * published in paragraph 
1, Special Orders, No. 214, Headquarters, Separate Brigade, Provost Guard, Manila, 
Philippine Islands, November 8, 1899, is set aside. The record of the trial failed 
to show that the members of the court and judge advocate were sworn, and, on 
being returned [by the War Department] for necessary action the court was not 
reconvened, as contemplated by paragraph 2, page 56, Court Martial Manual, 
1898, but the judge advocate interlined a statement in the record that the members 
of the court and the judge advocate were duly sworn. This action was unauthor- 
ized and invalid. A defective record returned for correction can only be amended 
to conform to the actual facta and by the court itself on revision when duly recon- 
vened for the purpose." 



574 DISCIPLINE XV E 12. 

of the fact that the accused had not been subjected to a trial for a 
military offense that the charges might be amended and the accused 
brought to trial before a legally constituted court, and such trial 
would not constitute a second trial for the same offense within the 
meaning of the one hundred and second article of war. C. 11998, 
Feb. 6, 1902. 

XV E 12. Where a court, though reduced by the absence of mem- 
bers, operation of challenges, etc., to below five members, yet proceeds 
with and concludes the trial, its further proceedings, including its 
finding and sentence, if any, are unautnorized and inoperative. 
R. 2, 450, May, 1863; 7, UO, Apr., 1864; C. 18764, Aug. 6, 1908. 

XV E 13. Held that the approval of a sentence is null and void 
where the soldier in question nas already been discharged from the 
service. C. 24658, Mar. 25, 1909, May 17, 1910, June 23, 1910, 
and Sept. 23, 1910. 

XV F 1. Where the prosecution introduced but one witness to 
prove the falsity of the testimony under the charge of perjury, and 
that witness was contradicted as to a material point and the accused 
was convicted, advised, pending the execution of the sentence, that 
the unexecuted portion thereof be remitted on account of the failure 
of proof. R. 53, 644, May, 1888. 

XV F 2. But the authority to find guilty of a minor included offense, 
or otherwise to make exceptions or substitutions in the finding, can not 
justify the conviction of the accused of an offense entirely separate 
and distinct in its nature from that charged. Thus lield that it was 
not a findmg of a lesser included offense to find the accused guilty 
merely of absence without leave under a charge of a violation of the 
forty-second article of war in abandoning his post before the enemy. 
R. 11, 274, Dec, 1864- And so held of a finding, under a charge of a 
violation of article 39, of not guilty but guilty of a violation of article 
40. R. 11, 276, Dec, I864. So, where a soldier charged with "con- 
duct to the prejudice of good order and mihtary discipline" (62d 
article of war) in concealing the fact that a fellow soldier had appro- 
priated to his own use certain pubUc property, was found not guilty of 
the specification as laid, but guilty of "having stolen the property 
himself" and guilty of the charge, and was accordingly sentenced to 
imprisonment, held that such a finding was manifestly unauthorized. 
Having been found not guilty of the offense set forth in the specifica- 
tion and which alone he was called upon to answer, he should have 
been acquitted on both charge and specification. The offense of which 
he was found guilty was not alleged against him, and not being 
included in that charged, could not properly form the subject of a find- 
ing. The remission of his sentence tnerefore recommended. R. 34, 
569, Oct., 1873; C. 12375, Apr. 23, 1902; 18764, Feb. 3, 1906. 

XV F 3. If an insane soldier be brought to trial by court-martial and 
he is shown by the record to have been insane pending the trial, the 
proceedings and sentence, if any, should be declared null and inopera- 
tive in orders. If the question of insanity in his case is not raised till 
after the proceedings have been acted upon and the sentence has been 
approved, and it then appears that he was actually insane, the sentence 
should be remitted. R. 55, 563, Apr., 1888. 

XV F 4. In general, where an accomplice offers and is admitted to 
testify upon the part of the Government against an accused person, he 
is called to the stand under an implied promise that no proceedings 



DISCIPLINE XV F 5. 575 

will be taken against himself, and that the question of his pardon will 
be favorably considered, provided he makes a full disclosure of the 
facts within his knowledge, and this whether or not the accused be 
convicted by means of his evidence.^ So, where a party, who had thus 
been admitted to testify as witness, and had in good faith made a full 
and frank statement of the circumstances of the offense (of which, 
however, the accused was acquitted by the court), was himself sub- 
sequently brought to trial for the same act, and convicted and sen- 
tenced for his part in the same, recommended that his sentence be 
remitted by the President. R. 11, 590, and I4, 259, Mar., 1865. 

XV F 5. Where for an offense not peculiarly aggravated, a court- 
martial imposed upon a soldier, in connection with a forfeiture of pay 
for six months, the further penalty of carrying a loaded knapsack 
weighing 24 pounds every alternate hour from sunrise to sunset of 
each day (Sundays excepted) during that period, lield that this punish- 
ment was excessive and exceptional, and — the same having been 
suffered by the soldier for tnree months — recommended that its 
unexpired term be at once remitted.^ B. 26, 520, Apr., 1868. 

XV F 6. Where, with a plea of guilty, there was offered by the 
accused a written statement setting forth material circumstances of 
extenuation, and the court without taking any testimony whatever, 
or apparently regarding the statement, proceeded to conviction and 
sentence; advised — the case being one in which the sentence had been 
partly executed — that this action constituted a reasonable ground for 
a remission of a portion of the punishment. R. 20, 120, 127, and 177, 
Nov., 1865; 15, 1^2, Apr., 1865; 29, ^21, Nov., 1869; 32, 652, May, 
1872; S3, 42, June, 1872. 

XV F 7. Held that the failure of the accused through ignorance to 
avail himself of his right of challenge in a particular instance is a 
proper ground for remission in whole or part of the sentence, or even 
for disapproval of the proceedings, etc., out held that it can affect in 
no manner the validity in law of the sentence.^ C. 10793, Feb. 28, 
1902. 

XV F 8. Held, that when the members of a court-martial recom- 
mend clemency, and the reviewing authority did not mitigate the 
sentence, it is good policy to remit a portion of the confinement after 
the sentence has been partially served (see C. M. No. 69337); also 
when conclusive evidence is presented of a distressing case of depend- 
ency on the part of the parents of the prisoner (C. M. No. 70631); 
also when it appears that the evidence upon wliich the conviction was 
based was not absolutely conclusive, or when new evidence is pre- 

* See King v. Rudd, Cowper, 331; United States v. Lee, 4 McLean, 103; Whiskey 
Cases, 9 Otto, 594; People v. Whipple, 9 Cowen, 707; 1 Chitty Cr. L., 768, 769; 1 Bishop 
Cr. Proc, sec. 1075, 1076, and notes; also Report (No. 352) of Committee on Judiciary 
of H. of Reps., 44th Cong., Istsess., Mar. 31, 1876. 

^ Article VIII of the amendments to the Constitution prohibits the infliction of 
"cruel and unusual punishments. " While this provision does not necessarily govern 
coiu"ts-martial, inasmuch as they are not a part of the judiciary of the United States, 
it should be observed as a general rule. That the provisions of the fifth, sixth, and 
eighth amendments to the Constitution, relating to criminal proceedings, apply only to 
the courts, etc., of the United States, see Barron v. Mayor of Baltimore, 7 Peters, 243; 
Ex parte Watkins, id. , 573; Twitchell v. The Commonwealth, 7 Wallace, 326 ; Edwards v. 
Elhott, 21 id., 557; Walker 7;.Sauvinet, 2 Otto, 90; Pearson i;.Yewdall, 5id.,294; IBish. 
Cr. L. sec. 725. See also "The Supreme Court on the Military Status," by Judge 
Adv. Gen. Lieber, 31 Am. Law Rev., 342, and cases cited. 

3 15 Op. Atty. Gen., 432, and Keyes v. U. S., 109 U. S., 336. 



576 DISCIPLINE XV G 1. 

sentetJ wliich weakens materially the force of the evidence which 
sustains the conviction, it is proper to remit a portion or the whole 
of the unexecuted sentence. C. 2906 j^, Oct. 7, 1911. 

XV G 1. Where the proceedings of a court-martial have regularly 
terminated and the sentence has been confirmed and ordered to be 
executed by the proper and final reviewing authority, the fact that 
the record has since been lost does not impair or affect the judgment 
of the court and constitutes no legal obstacle to the enforcement of 
the penalty. R. 9, 238, June, I864. 

XV H 1. In March, 1870, the president of the National Home for 
Disabled Volunteer Soldiers (a civihan) convened, at the home, a 
court-martial composed of eight inmates of the same (all civilians, 
but designated by their former rank in the volunteer service, as "sur- 
geon," "captain," "sergeant," and "private") for the trial, on 
charges of desertion and other offenses, of another (civilian) inmate. 
The court tried the accused, convicted him, and sentenced him to a 
term of imprisonment. The proceedings and sentence were approved 
by the convening authority, who thereupon apphed to the Secretary 
01 War for an order designating a military prison for the confinement 
of the party in execution of his sentence. Held (upon a reference of 
the case for opinion by the Secretary of War), that the proceedings 
were unprecedented, unauthorized ao initio, and void as a whole and 
in detail; that the provision in the act establishing the home, that 
the inmates should be "subject to the rules and articles of war in the 
same manner as if they were in the Arm}^^," even if it could be regarded 
as constitutional, conveyed no authority for such a court as that 
constituted and composed in this case; and that the sentence adjudged 
by the same could not legally be executed in the manner proposed or 
otherwise.^ R. 30, 286, Apr., 1870; G. 12817, July 21, 1902; 20120, 
July 31, 1906. 

XV H 2. Held, that a court convened by a Ueutenant colonel in 
command of a department was illegal. C. 16710, Feb. 6, 27, and 29, 
1908. P. 42, 438, Sept. 2, 1890. Similarly held that a court con- 
vened by a lieutenant colonel in command of the Army of Cuban 
Pacification was illegal. G. 16710, July 23, 24, 26, and 29, 1908; 
Aug. 12 and I4, 1908. 

XV H 3. Held, that for the purpose of trying volunteer officers gen- 
eral courts-martial composed partially or wholly of regular officers are 
illegally constituted 2 (G. 7895, Oct. 2, 1902), even if such officers hold 
commissions in the Volunteer Army.^ G. 5654, Apr. 25, 1908. 

XV I 1. Courts-martial are no part of the judiciary of the United 
States, but simply instrumentalities of the Executive power. They 
are creatures of orders; the power to convene them, as well as the 
power to act upon their proceedings, being an attribute of command. 
But, though transient and summary, their judgments, when rendered 
upon subjects within their limited jurisdiction, are as legal and valid 

^ It is inaccurately stated in the report of the case of Renner v. Bennett, 21 Ohio St. 
434 (Dec, 1871), that no inmate of the National Home had ever been subjected to a 
trial by court-martial. The instance referred to in the text, however, is the only 
one known of such a trial; and in this case the proceedings were, on the report of the 
Judge Advocate General, declared to be void ab initio and wholly inoperative by the 
Secretary of War. 

2 See McClaughry v. Demming, 186 U. S., 49, and XV, Comp. Dec, 875. 

» U. S. 1;. Brown, 206 U. S., 240. 



DISCIPLINE XV I 2. 577 

as those of any other tribunals, nor are the same subject to be 
appealed from, set aside, or reviewed, by the courts of the United 
States or of any State.^ R. 1, 451, Dec, 1862; 5, 656, Dec, 1863; 
55, 486-492, Mar., 1888; 0. 10910, Dec 3, 1901; 17768, Apr. 23, 
1905; 19465, July 19, 1907; 28010, Mar. 18, 1911. 

XV I 2. So, where a legal sentence adjudged by a court-martial has 
once been duly executed, the same is irreversible and can not be 
rescinded or modified by virtue of any executive authority of revision 
or pardon vested in the President. However severe or unjust such a 
sentence may have been, or whatever irregularity (short of an abso- 
lutely fatal defect) may have characterized the proceedings, the case, 
after the sentence, as approved, has been executed, is wholly beyond 
executive control.^ R. 36, 274, 330, Feb. and Mar., 1875; 37, 
243, 390, 420, Jan. and Mar., 1876; 39, 242, and 248, Oct., 1877; 
P. 34, 334, Aug., 1889; G. 28010, Mar. 18, 1911. 

XV I 2 a. A legal sentence of court-martial, when once duly 
approved and executed, can not be reached by a pardon, nor revokea, 
recalled, modified or replaced by a milder punishment or other pro- 
ceeding, either by the Executive or by Congress.' The only remedy 

1 See Dynes v. Hoover, 20 How., 79; Ex parte Vallandigham, 1 Wall., 243; Keyes v. 
IT. S., 109 U. S., 336; Wales v. Whitney, 114 id., 564; Smith v. Whitney, 116 id., 167; 
Johnson v. Sayre, 158 id., 109, 118; Fugitive Slave Law Cases, 1 Blatch., 635; In re 
Bogart, 2 Sawyer, 402, 409; Moore v. Houston, 3 S. & R., 197; Ex parte Dunbar, 14 
Mass., 392; Brown v. Wadsworth, 15 Verm., 170; People v. Van Allen, 55 N. York, 31; 
Perault v. Rand., 10 Hun., 222; Moore v. Bastard, 4 Taunt., 67; 6 Opins. Atty. Gen., 
415, 425. ' 'No acts of military officers or tribunals, within the scope of their jurisdic- 
tion, can be revised, set aside, or punished, civilly or criminally, by a court of common 
law." Tyler v. Pomeroy, 8 Allen, 484. Where a court-martial has jurisdiction, "its 
proceedings can not be collaterally impeached for any mere error or irregularity com- 
mitted within the sphere of its authority. Its judgments, when approved as required, 
rest on the same basis and are surrounded by the same considerations which give con- 
clusiveness to the judgments of other legal tribunals, including as well the lowest as 
the highest under like circumstances. " Ex parte Reed, 10 Otto, 13. See Winthrop's 
Mil. L. & P., 55-57 and authorities cited; 3 Greenleaf Ev., 470; Clode Mil. F., 361; 
id., M. L., 58. 

In Rose ex rel. Carter v. Roberts (99 Fed. Rep., 948) the court said: ' 'It is not the 
office of a writ of habeas corpus to perform the functions of a writ of error in review- 
ing the judgment of a court-martial. Courts-martial are tribunals created by Con- 
gress in pursuance of the power conferred by the Constitution, and have as plenary 
jurisdiction of offenses committed to them by the law military as do the circuit and 
district courts of the United States in the exercise of their statutory powers over 
other offenses. The question of jurisdiction may be reached by such a writ, as it 
may be when the judgment of any tribunal is attacked; but the range and scope of 
the inquiry is controlled by the same rules and limitations in either case. There 
must be jurisdiction to hear and determine, and to render the particular judgment 
and sentence imposed; but, if this exists, however erroneous the proceedings may be, 
they can not be reviewed collaterally, or redressed by habeus corpus. These principles 
have been repeatedly declared by the authorities. In re Davison (C. C), 21 Fed., 
618; Ex parte Reed, 100 U. S., 13, 25 L. Ed., 538; In re Coy, 127 U. S., 731, 8 Sup. Ct., 
1263; 32 L. Ed., 274; Ex parte Yarbrough, 110 U. S., 651, 4 Sup. Ct., 152, 28 L. Ed., 
274; U. S. V. Pridgeon, 153 U. S., 59, 14 Sup. Ct., 746, 38 L. Ed., 631." 

Grafton v. U. S. (206 U. S., 333) : ' 'The decision, therefore, of a military tribunal act- 
ing within the scope of its lawful powers can not be reviewed or set aside by the courts. 
Johnsons. Sayre, 158 U. S, 109; Mullani;. U. S., 212 U. S., 516; and Reaves v. Aina- 
worth, 219 U. S., 304. 

^ Such a sentence is ' 'no longer subject to review by the President. " 15 Op. Atty. 
Gen., 290. 

'The well-established principles that mere irregularities in the proceedings will 
not affect the validity of an executed sentence, and that a legal sentence once duly 
confirmed and executed is ' 'no longer subject to review by the President," so point- 
edly set forth (in 1843) in 4 Op. 274, are further illustrated in 15 id. 290, 432. 

93673°— 17 37 



578 DISCIPLINE XV I 3. 

for a party who has suffered injustice from such a sentence is either 
a new appointment to the Army by the President or some legislation 
within tne province of Congress relieving or indemnifying him for 
and on account thereof. R. 4I, 638, Apr., 1879; 42, 320, June, 
1879; 63, 1^3, Oct., 1886; P. J^7 , 337, May 28, 1891; 0. U94, June, 
1898; 6690, June, 1899; 11786, Dec. 23, 1901; 11876, Jan. 11, 1902; 
12313, Mar. 28, 1902; 12321, Mar. 29, 1902; 13030, Sept. 16, 1902; 
13637, Nov. 11, 1902; 13646, Nov. 12, 1902; 14898, July 2, 1903; 
16610, Nov. 18, 1903. 

XV I 3. Held, that mere irregularity in the proceedings of a court, 
even though the rights of the accused are prejudiced in the admission 
or rejection of e"\'idence, or the members of the court are biased, or 
the finding is unjust, or the sentence of dismissal too severe, can not 
cause a reopening of the case where the sentence is legal and it has 
been legally confii^med and executed. Neither can they add any- 
thing to the power of the Executive or of Congress to nullify or 
modify the dismissal as such.^ R. 20, 302, Jan. 8, 1866; 26, 462, 
Feb. 19, 1868; 28, 467, Mar. 27, 1869; 29, 676, Jan. 8, 1870; 30, 
318, 323, 420, May 7, 1870, and June 20, 1870; 34, 634, Nov. 29, 
1873; 36, 274, 330, Feb. 23, 1876, and Mar. 22, 1876; 38, 243, Aug. 
14, 1876; 39, 238, 242, 248, Oct. 22 and 23, 1877; 66, 221, Dec. 19, 
1887; G. 7609, Jan., 1900; 16710, Aug. 9, 1904. 

XV I 4. Held, that after the reviewing authority has acted on a 
case and his action has been promulgated in orders it is too late to 
urge that the sentence is invalid on account of weight of evidence, 
credibility of witnesses, or any other matter calling for the exercise 
of judgment or discretion on the part of the court or reviewing author- 
ity. C. 6664, July 24, 1899; 11609, Nov. 8, 1901; 17386, Jan. I4, 
1906. 

XV K 1 . Held, that a court-martial sentence is illegal when the 
offense committed is not a military one because the court has no 
jurisdiction over offenses other than military offenses. C. 1989, 
Jan. 17, 1896. 

XVI A 1. A regimental court-martial has no jurisdiction under the 
30th article of war to redress a wrong which can not be righted ex- 
cept by punishment of the officer concerned. G. 866, Jan. 10, 1896. 

XVI B 1 . Where, after a garrison court (eighty-second Article of 
War) had tried the cases referred to it but before its proceedings had 
been acted upon, the command of the post was devolved upon the 
officer who had been president of the court, Jield that such officer 
would legally and properly act upon the proceedings; the case not 
being one in which the action of the department or other higher com- 
mander was required by the one hundred and ninth article of war. 
R. 43, 268, Mar., 1880. 

XVI C. The provision of articles 72 and 73 that, when the conven- 
ing commander is ' ' accuser or prosecutor,'' the court shall be convened 
by the President or "next higher commander," being expressly re- 
stricted to general courts, has of course no application to regimental 
or garrison courts. The same j)rinciple, however, should properly be 
applied to proceedings before inferior courts, if it can be done without 
serious embarrassment to the service. R. 34, 363, 698, July and Nov., 
1873; 36, 138, Jan., 1874; 42, 231, Apr., 1879. 

1 See 4 Op. Atty. Gen., 274. 



DISCIPLINE XVI D. 579 

XVI D. The prohibition of article 103 relates only to prosecutions 
before general courts-martial; it does not apply to trials by inferior 
courts. So, courts of inquiry may be convened without regard to the 
period which has elapsed since the date or dates of the act or acts to 
be investigated.^ R. J^2, 213, Mar., 1879; C. 18772, Oct. 26, 1905. 
Nor does the rule of limitation apply to the hearing of complaints by 
regimental courts under article 30. R. 31, 452, June, 1871. 

XVI E 1. A summary court is not empowered to issue process of 
attachment to compel the attendance of a civilian witness. P. 51, 
468, June, 1892. 

XVI E 2. An enlisted man is not triable by a summary court for a 
violation of the twenty-first article of war, as capital cases are in excess 
of its jurisdiction. C. 6186, Apr. 8, 1899; 7392, Dec, 1899; 10946, 
July 30, 1901; 11360, Oct. 11, 1901; 11676, Dec. 2, 1901: 14761, June 
5, 1903; 16101, Mar. 29, 1909. 

XVI E 3. Held that a summary court officer is the executive officer 
of the summary court in the same sense that the judge advocate is the 
executive officer of a general court-martial, and that the summary 
court officer, therefore, is charged with the securing of all vouchers in 
regard to witness fees, etc. d7890, Apr., 1900; 13418, Oct. 2, 1908.^ 

XVI E 4 a. Held that the post commander should personally and 
with his own sign manual act on the records of inferior courts-martial 
convened by him, and should include in his action the date of approval, 
as forfeitures of pay operate only from that date. C. 854, Jan., 1895. 

XVI E 4 b. Held that the post commander, being the reviewing 
authority, and without whose approval the sentence can not be 
carried into effect, may require a summary court to reconsider a sen- 
tence. C. 6O42, Mar. 14, 1899. 

XVI E 4 c. Held, that while the law establishing the summary court 
does not expressly forbid a commanding officer to appoint himself, 
yet such a detail is contrary to the whole tenor and spirit of the act of 
June 18, 1898 (30 Stat., 483), and of the regulations adopted in 
furtherance thereof. C. 18121, June I4, 1905.^ 

XVI E 5. Held, that when the "court" consists of the second in 
rank, and he is the accuser, the case is to be tried by the post com- 
mander; and when the "court" consists of the post commander, and 
he is the accuser, the case is to be tried by a regimental or garrison 
court-martial." P. 56, 279, Nov. 4, 1892; C. 635, Nov. 15, 1894. 

XVI E 6. The summary court act of June 18, 1898 (30 Stat., 483), 
provides, inter alia: "That the commanding officer of each garrison, 
fort, or other place, regiment or corps, detached battalion, or company, 
or other detachment in the Army, shall have power to appoint for such 
place or command, or in his discretion for each battalion thereof, a sum- 
mary court to consist of one officer to be designated by him, " for the trial 
of enlisted men, and ' ' that when but one commissioned officer is present 
with a command, he shall hear and finally determine such cases." 
This was intended to provide for the trial of enlisted men under all 
conditions of service. Held, therefore, that the surgeon in cornmand 
of the Army and Navy General Hospital, Hot Springs, Ark., being an 
officer of the Army, has authority under this act to appoint a sum- 

' See 6 Op. Atty. Gen., 239. 

2 See Cir. No. 88, War Dept., Oct. 31, 1908. 

3 See Cir. No. 32, War Dept., June 30, 1905. 
*Cir. 15, A. G. 0., 1892. 



580 DISCIPLINE XVI E 7. 

mary court for the trial of enlisted men of the Army under his com- 
mand. 0. 856, Feb., 1900. Held, also, where the division field hos- 
pital and the division field ambulance company were independent 
commands and responsible direct to the division surgeon and division 
commander, that their respective commanders were competent to 
appoint summary courts for the same.^ C. 4966, Oct., 1898. And the 
surgeon in command of a United States hospital ship is a command- 
ing officer within the meaning of the summary court act and may 
appoint such court for the trial of enlisted men on such ship. C. 4-931 , 
Sept., 1898; 14427, Apr. 22, 1903. 

XVI E 7. Held, that the commanding officer of a brigade post has 
authority as convening officer of a summary court to retain within 
himself the appointing power of all summary courts within his com- 
mand, and that he may establish a summary court for each regularly 
organized battalion and squadron composing his command, and may 
organize other detachments serving at the post into temporary bat- 
talions for the piUTDOse of summarj court jurisdiction, but that if he 
does not exercise the authority which is thus vested in him by statute 
he allows the appointing power, including the power of review, to pass 
to regimental commanders by the operation of law to appoint sum- 
mary courts within their regiments. C. 22592, Jan. 11, 1908, July 8, 
1909. 

XVI E 8 a. Held, that when a command in the execution of a 
practice march passes out of the territorial limits of the division in 
which it is stationed, the summary court report will be sent to the 
headquarters of that division. Held, further, that if such a command 
constitutes a part of a brigade camp, such reports will at its close be 
transferred to the headquarters of the division to which the troops 
returned. C. 20389, Sept. 19, 1906; 28498, Aug. 23, 1911. 

XVI F. The duty devolves upon a department commander of 
supervising the proceedings of regimental and garrison courts-martial 
transmitted to his headquarters. Held, that if he discovers a mate- 
rial error, defect, or omission, he should bring the same to the atten- 
tion of the proper inferior commander, and if such error is a fatal 
defect, such inferior commander should issue an order declaring the 
sentence void. But if such error is not a fatal defect, such inferior 
commander can remit the unexecuted punishment. R. 35, 174, Feb., 

1874. 

XVII A 1 . Held, that a company commander under the control of 
the commanding officer of the post is authorized to dispose of dere- 
lictions in his company, which would be within the jurisdiction of an 
inferior court-martial, by requiring extra tours of company or post 
fatigue unless the soldier demands trial. C. 3589, Oct., 1897; 19701, 
May 15, 1906; 20051, July 13, 1906; 21211, Mar. 14, 1907. 

XVII A 2. Held, that commanding officers are not required to bring 
every dereliction of duty before a court for trial, but should endeavor 
to prevent their occurrence by admonitions, withholding of privileges, 
and taking such other steps as may be necessary to enforce discipline. 
a 19701, May 15, 1906; 20051, July 13, 1906. 

* While the nomenclature of the various hospitals and ambulance companies has 
changed, the principle remains the same, that if it is an independent command, the 
right to appomt a summary court exists in the commander. And also see cir. 49, 
A. G. O., 1890. 



DISCIPLINE XVII A3. 581 

XVII A 3. Punishment by sentence of court-martial. (See Articles 
of War; and Sentence, under Discipline.) 

XVII A 4 a. The old rule that the term of a confinement (of so 
many months, years, etc.), imposed by sentence of court-martial, 
commenced on the day on which the prisoner was delivered to the 
proper officer — as the officer in charge of the prison or commanding 
the post — to be confined according to the sentence (B. 11,380, Jan,, 
1865), having been found inconvenient in practice, there was sub- 
stituted for it by General Order 21, Headquarters of the Army, of 
1870, the rule that "the confinement shall be considered as com- 
mencing at the date of the promulgation of the sentence in orders." 
To hold that under this order the commencement of the confinement 
must be delayed until notice of it has reached the prisoner might lead 
to the same abuse which the order was intended to correct. R. 30, 
150, Mar., 1870; C. 18165, Dec. 26, 1905, and Jan. 12, 1906. 

XVII A 4 b. Wlien a soldier at two successive trials is sentenced to 
confinement, the two sentences will be held to be cumulative when 
they are both approved on the same day (B. 34, 4'^9, Sept., 1873; 
a 1608, Aug. 1, 1895; 12402, Apr. 14, 1902; 19422, Mar. 19, 1906); 
or when the soldier is serving one sentence when brought to trial a 
second time as a result of which he received a sentence of confine- 
ment. B. 38, 409, Jan., and 556, Apr., 1877; 43, 102, Dec, 1879; 
C. 1609, Aug., 1895; 12402, Apr. 14, 1902; 19972, Jan. 27, 1906; 
19740, May 18, 1906. When a sentence is cumulative upon one that 
is pending, its execution will properly commence at the date when 
the pending confinement term terminates whether by expiration of 
time or by remission. B. 31, 315, Apr., 1871; 32, 670, June, 1872; 
34, 479, Sept., 1873; 35, 433, June, 1874; 38, 43, Apr., 1876, and 556, 
Apr., 1877; 43, 102, Dec, 1879; O. 1609, Aug. 1, 1895; 19422, Mar. 
19, 1906; 17200, Jan. 25, 1907; 19546, July 21,1908. The principle 
of cumulative sentence apphes even where a prisoner escapes from a 
pending confinement, enlists, deserts, is arrested, tried for the second 
desertion, convicted and sentenced to confinement. P. 38, 124, 
Jan., 1890. 

XVII A 4 c. When a military prisoner escapes, he must upon capture 
serve the unexecuted portion of his sentence. This is true when the 
prisoner escapes as an accused person during the progress of his trial 
and the court thereafter sentences him to confinement which is ap- 
proved and ordered executed.^ C. 14767, Feb. 6, 1905; 23941, Oct. 7, 
1908, and Mar. 1, 1909. Also when the soldier after sentence, but 
before approval of same by reviewing authority, escapes. B. 29, 7, 
June, 1869. Also when pending the execution of the sentence he 
escapes. B. 38, 119, July, 1876; P. 46, 176, Mar., 1891; 51, I46, 
Dec, 1891; 59, 173, Apr., 1893; C. 133, Aug. 6, 1894; 3702, Dec 3, 
1897; 17393, Oct. 17, 1900; 17163, Nov. 16, 1904. The one hundred 
and third article of war does not prevent the escaped prisoner's being 

^ See U. S. V. Loughory (13 Blatchford, 267, Fed. Cases No. 15631); State v. Peacock 
(50 N. J. Law, 34); Stone v. Commonwealth (2 Ky. Law Rep., 305^; Commonwealth 
V. Smith et al. (163 Mass., 411); Commonwealth v. McCarthy, (163 Mass. Rep., 459); 
Fight V. State (7 Ohio, 180); Wilson v. State (2 Ohio St., 319)": Price v. State (36 Miss., 
531); Hill V. State (17 Wis., 675); State v. Wamire (16 Ind., 357); Lynch v. Common- 
wealth (88 Penn. St., 189). See also G. O., 45, War Dept., Mar. 12, 1909. 



582 DISCIPLINE XVII A 4 d. 

required upon capture to serve the remaining portion of his sentence, 
as stated above.^ C. 1812, Feb. 17, 1909. 

XVII A 4 d. Prison authorities have no right to open and inspect 
letters addressed to or sent by their prisoners without the consent 
of the latter. They can, however, retain such letters unopened which 
may come into their possession until such time as the parties may be 
tried or released, or the letters otherwise disposed of under judicial 
process.^ C. 2469, July, 1896. 

XVII A 4 e. Held, that the suspension of the sentence of a court 
martial before or during its execution is without precedent. C. 8838, 
Aug., 1900.- Held, that a post commander is not authorized under 
the one hundred and twelfth article of war to suspend the execution 
of a sentence by a garrison court-martial during good behavior on the 
part of soldiers so sentenced. R. 30, 115, Fel., 1870; C. 20797, Dec. 
13, 1906; 27738, Jan. 21, 1911. 

XVII A 4 f . A remission of part of a sentence of confinement leaves 
the reduced sentence as though it were the original, and the prisoner 
is entitled to good-conduct time on the reduced sentence. R. 37, 
490, Apr., 1876; P. U, 66, Nov., 1890. 

XVII A4 g (1) . The proceeds of sales of articles manufactured by the 
prisoners at the military prison are clearly public funds, and, in the 
absence of any statutory provision in regard to their disposition — sec- 
tion 1351, R. S., only requiring that they shall be "accounted for" as 
received by the commandant — can not legally be expended in repair- 
ing or improving the prison building or otherwise without authority 
of Congress. R. 42, 24, Oct., 1878. 

XVII A 4 g (2). Held that, under the general authority vested in the 
Secretary of War by section 1351, R. S., to direct as to the disposition 
of the articles manufactured by the convicts at the military prison at 
Leavenworth, and in the absence of anything in section 3716, R. S., 
or elsewhere in the statute law relating to contracts precluding such 
action, the Secretary was empowered to order that the shoes made 
by the prisoners should be turned over to the Quartermaster Depart- 
ment for issue to the Army. R. 41, 427, Oct., 1878. 

XVII A 4 g (3). It is not adding to the punishment in executing a 
sentence of confinement to require the prisoner to perform work pre- 
scribed for prisoners of his class by the statute law. Thus persons sen- 
tenced to imprisonment at the military prison at Leavenworth, 
though "hard labor" be not in terms included in the sentence, may 
legally be employed in the labor or at the trades indicated bv section 
1351, R. S., R. 37, 640, June, 1876; 51, 601, Mar., 1877; Pi 42, 101, 
July, 1890. 

XVII A 4 g (4). Held that the commander of the prison post at 
Alcatraz Island was authorized to make and enforce all necessary and 
proper regulations for the safe keeping and government of the mili- 
tary prisoners there confined; that he might, by the use of force, if 
needful, but using no more force than was necessary, prevent civil- 
ians from landing on the island in violation of the regulations, and 
put such persons off the island as had landed there contrary to the 
same; that, in an extreme case, as where a civilian, engaged in aiding 
a prisoner to escape, and no other means of prevention would avail, 

» See Dolan's case, 101 Mass.. 219. 

* See Circ. 8, A. G. O., 1896; also U. S. Postal Guide, May, 1896, p. 13. 



DISCIPLINE XVII A4g(5). 583 

he might propeiiv order the party to be fired upon by the guard. 
R. 32, 525, Apr., 1872. 

XVII A 4 g (5). Held that the private money of a general prisoner 
confined in a United States mihtary prison may not be forfeited even 
if received as a bribe for assisting m violating prison rules, and if 
taken possession of by the commandant it must be returned to the 
general prisoner at date of release.^ C. 26782, May 28, 1910; 25281, 
Aug. 17, 1910. 

XVII A 4 g (6). Where a member of a United States military prison 
guard had shot and killed a general prisoner to prevent liis escape, 
held, that it is not good policy to have a pardon issued to liim for 
purpose of restoring him to duty without trial even though innocent ; 
that such procedure should be taken as would keep the soldier in the 
hands of the military authorities, and that he should be arraigned 
before a general court-martial to determine whether or not he was 
justified in taldng the extreme measures he did to prevent the escape. 
C. 27119, Aug. 3, 1910. 

XVII A 4 g (7). Held that a tailor shop can be established in the 
military prison at Fort Leavenworth at which general prisoners can 
be emploved in the maldng of civilian clothing for issue to discharged 
general prisoners. C. 26193, Feb. 10, 1910, arid Mar. 12, 1910. 

XVII A 4 h (1). Persons convicted by courts-martial and sent to 
the United States penitentiary under the provisions of the sundry 
civil act of March 2, 1895 (26 Stat. 333), can not be turned over to a 
United States marshal for transportation to the penitentiary, but 
must be delivered there by the military authorities. C. 1201, July, 
1895; 20052, July 13, 1906. 

XVII A 4 i. Where a sentinel at Fort Ethan Allen fired upon and 
kiUed a general prisoner who was attempting to escape, such general 
prisoner not being under his immediate charge, Tceld that the guard 
at a military post must be considered as a whole, and the mere fact 
that certain members of the guard are assigned to the duty of watch- 
ing certain designated prisoners does not relieve the other members 
of the guard of the duty of preventing the escape of prisoners. 
C. 23423, June 12, 1908. 

XVII B 1 a. Two soldiers at a military post refused to do extra 
fatigue duty imposed upon them by their captain for failing to make 
a proper score at target practice. The captain caused one of them to 
be tied up by his wrists with his feet partly raised from the ground for 
some six hours, and the other to be so tied up for about one hour and 
to be immei-sed several times in a water hole. Held that such action 
was whoUy without justification, the punishment infhcted not being 
sanctioned by law or usage, or warranted by the circumstances of 
the case, and that the officer was clearly amenable to trial under the 
sixty-second article of war. P. 60, 257, June, 1893. 

XVII B 1 b. A soldier, who had been improperly allowed with 
others of a detachment to enter a saloon and drink, became disorderly 
and insubordinate in public, without however, committing violence. 
The captain commanding, in attempting to repress him, assaulted 
him by striking him on tlie head with a Government rifle with such 
force as to fell him to the ground and render him senseless, at the 
same time inflicting a severe contused lacerated wound on lus right 

' 19 Cyc, 1359. 



684 DISCIPLINE XVII B 1 C. 

ear which rendered it deaf for several days. There was nothing like 
a mutiny and no serious disorder in the command. Held that the 
violence of the officer was greatly in excess of his authority and 
whoUy unjustifiable, the fact that the soldier was under the influence 
of liquor going to aggravate the officer's offense. And recommended 
that the captain be brought to trial under article 62.^ P. 4^, 52, 
June, 1893. 

XVII B 1 c. Where, upon the trial of a soldier convicted of insub- 
ordinate conduct and severely sentenced, it was shown in evidence 
that at the time of such conduct he was subjected to punitive treat- 
ment by his company commander, who caused him to be tied up and 
gagged, and it appeared that there was no indication of mutiny or 
other exigency in the command, Tield that such treatment was arbitrary 
and unwarranted by law or usage, and a military offense on the 
part of the officer, and advised that clemency be exercised in the case 
of the soldier. R. 53, 193, Oct., 1886. 

XVII Bid. Respect for the person and office of a sentinel is as 
strictly enjoined by mUitary law as that required to be paid to an 
officer. As it is expressed m the Army Regulations "all persons of 
whatever rank in the service are required to observe respect toward 
sentinels." Invested, as the private soldier frequently is while on 
his post, with a grave responsibihty, it is proper that he should be 
fully protected in the discharge of his duty. To permit any one, of 
whatever rank, to molest or interfere with him while thus employed, 
without becoming liable to a severe penalty, would obviously estab- 
lish a precedent highly prejudicial to the interests of the service. So 
where, in time of war, a lieutenant ordered a soldier of his regiment, 
who had been placed on duty as a sentry by superior authority, to 
feed and take care of his horee, and, upon the latter respectfully 
declining to leave his post for the purpose, assailed him with abusive 
language — lield that a sentence of dismissal imposed by a court- 
martial upon such officer, on his conviction of this offense, was fully 
justified by the requirements of mihtary disciphne. R. 18, 598, 
Feb., 1866. 

XVII B 1 e. Held that a company commander has no authority to 
require a soldier to contribute money to the company fund in lieu 
of trial by court-martial. C. 20051, July 13, 1906. 

XVII B 1 f. The pay of the offender or offenders can be resorted 
to under the fifty-fourth article of war only for the purpose of the 
"reparation." A military commander can have no authority to add 
a further amount of stoppage by way of 'punishment. R. 8, 671, July, 
1864. 

^ In proper cases, of course, as where violence is employed, escape attempted, etc., 
by soldiers who are mutinous or disorderly, or in arrest under charges, force may be 
used against them according to the necessities of the case ; see G. 0. 53, Hdqrs. of Army, 
1842; do. 2, War Dept., 1843; G. C. M. O. 47, Hdqrs. of Army, 1877; G. O. 53, Dept. 
of Va. and N. C, 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 112, id., 1870; 
do. 90 id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871; 
do. 93, Dept. of the South, 1873; do. 31, Mil. Div. of the Atlantic, 1873; G. C. M. O. 
37 Dept. of Texas, 1880. This, however, is prevention and restraint, not punishment; 
the authority to use the needful force in such cases will not justify the superior, when 
the offender is repressed or apprehended, in subjecting him to arbitrary punitory 
treatment. 



DISCIPLINE XVII Big. 585 

XVII Big. Held that a reviewing officer is not authorized, after 
disapproving an acquittal, to order that the accused be confined or 
otherwise punished.^ R. 12, 2^9, Jan., 1865. 

XVII B 2 a (11). Reduction to the ranks was authorized to be 
imposed as a punishment by courts-martial upon commissioned 
officers of the Army, on conviction of absence-without-leave — by the 
act of March 3, 1863, c. 75, s, 22; and, upon conviction of the offense 
of neglecting or refusing to turn over to the proper official any cap- 
tured or abandoned property coming into the possession of the party — 
by the act of March 12, 1863, c. 120, s. 6. This punishment, which 
involved the dismissal of the officer {R. 16, 484, ^ug., 1865) is no longer 
legal; the statutory provisions indicated being impliedly confined in 
their appUcation to the period of the Civil War (or for a hmited period 
succeediiig the same), and not being reenacted in the Revised 
Statutes.2 C. 22215, Oct., 15, 1907. 

XVIII A. A board of officers convened to investigate — obtain, 
or hear and examine, evidence — and report, can, in the absence of 
specific statutory authority, exercise none of the pecuUar legal 
functions either of a court-martial or of a court of inquiry. R. 2, SJfi, 
May, 1863; 21, 335, Apr., 1866; 26, 492, Mar., 1868; 32, 3, May, 
1871; 41, 263, June, 1878. Its members can not be sworn; it can not 
swear witnesses;^ civihan witnesses can not be compelled to appear 
before it; nor are the witnesses who appear ana testify legally 
entitled to any compensation for attendance or travel. R. 11, 672, 
Apr., 1865; 21, 335, supra; 26, 4^2, supra. Such a board can not 
try, nor can it sentence. R. 11, 672, supra; 32, 3, supra. There is 

' In general orders, punishments inflicted merely at the will of military com- 
manders, have been repeatedly condemned as illegal and forbidden in practice. 
See G. O. 81 (A. G. O.), 1822; do. 53, Hdqrs. of Army, 1842; do. 2, 4, War Dept., 1843; 
do. 39, Hdqrs. of Army, 1845; do. 645, War Dept., 1865; do. 49, Northern Dept., 1864; 
do. 22, Dept. of the Platte, 1867;do. 44, id., 1871; do. 63, Dept. of Dakota, 1868; do. 
106, id., 1871; do. 40, Dept. of the East, 1868; G. C. M. O. 112, id. 1870; do. 90, id., 
1871; G. 0. 14, Dept. of the South, 1869; do. 1, 23, 93, id., 1873; do. 9, Mil. Div.of the 
Atlantic, 1869; do. 31, id., 1873; do. 23, Dept. of the Lakes, 1870; G. C. M. O. 50, Dept. 
of the Missouri, 1871. Officers who have resorted to such punishments have been 
repeatedly brought to trial and sentenced. See G. 0. (A. & I. G. O.) of June 30, 
1821; do. 8 (A. G. O.), 1826; do. 28, id., 1829; do. 64, id., 1832; do. 2, 6, 68, War Dept., 
1843; do. 39, Hdqrs. of Army, 1845; do. 53, Dept. of Va. & N. C. 1864; do. 22, Dept. of 
the Platte, 1867; do. 9, Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; 
G. C. M. O. 50, Dept. of the Missouri, 1871. See G. O. No. 10, Hdqrs. Third Separate 
Brigade, Dept. of North Philippines, Batangas, Mar. 14, 1902, which publishes the 
acquittal of an officer who was tried for ' ' bucking and gagging ' ' a drunken prisoner, 
.and causing cold water to be thrown in his face. See also G. O. No. 67, Hdqrs. of the 
Army, Washington, Dec. 6, 1897, which publishes the action of a court in the case of an 
officer, who caused a prisoner to be dragged to the place of the summary court, 
when that prisoner refused to proceed to that place. 

2 Cases of officers sentenced to this punishment, upon conviction under the first 
named statute, are published in G. O. 27, War Dept., 1864; do. 80, Dept. of the Gulf, 
1863; do. 38, Dept. of the East, 1864; do. 36, Middle Dept., 1864; do. 5, 2d Div., 5th 
Army Corps, 1864; G. C. M. O. 25, 51, Army of Potomac, 1864; do. 12 id., 1865. No 
instance has been met with of the imposition of this punishment upon a conviction 
under the latter statute. In some few cases, during the Civil War, this punishment 
was adjudged — illegally — for offenses other than those specified in the acts designated 
in the text. See case of Brig. Gen. D. G. Swaim, J. A. Gen., who was sentenced to 
reduction in rank; in this case the record was returned to the court by the President 
for amendment of sentence. 

^ But see sec. 183, R. S., as amended Mar. 2, 1901, which grants authority for the 
administering of oaths in certain cases. 



586 DISCIPLINE XVIII B. 

properly no "accused" party required or entitled to appear before 
it as before a court-martial or court of inquiry. R. 2, SJfi, supra. It 
is not restricted by law as to the period of its sittings, nor is it affected 
by any statute of limitations. R. 26, 493, Mar., 1868. Its members 
(though in tliis, indeed, it does not differ from a court of inquiry) 
may present two or more reports where they can not concur in one. 
R. 41,207, Apr., 1878. 

XVIII B. As a court of inquiry can not be ordered in a case of a 
civilian,^ a body of officers convened to inquire into and report upon 
the facts of the case of an officer who has been legally dismissed from 
the service is a mere board of investigation, and can exercise none 
of the special powers of a court-martial or court of inquiry. R. 41, 
263, June, 1878. 

XVIII C. Held that parties who appeared and testified before, 
and at the instance of, an officer charged with the preliminary investi- 
gation of a case, but were not required to attend at the subsequent 
trial, were not legally entitled to witness fees. R. 21, 463, July, 1866. 

XVIII D. The Army appropriation acts now appropriate money 
"for expenses of courts-martial, courts of inquiry, and compensation 
of reporters and witnesses attending the same." Reporters for courts 
of inquiry may therefore be paid out of such appropriation. If the 
employment of a reporter for a board of officers should^ be authorized 
by the Secretary of War, payment for such service would have to be 
made from the appropriation for the contingent expenses of the Army. 
C. 6971, Sept., 1899. 

XVIII E. As to character of enlisted men. (See Discharge.) 

DISHONORABLE DISCHARGE. 

See Discharge I A; IV to V. 

Articles op War XLVIII D. 

Desertion X A. 

Commutation or mitigation of See Articles of War CXII Ala; D. 

Continuous service can not antedate See Pay and allowances I C 5 b (2). 

Date of See Enlistment I D 3 c (9). 

Disqualifies for deserter's release See Desertion XVII B. 

Effect on status See Discharge XXII B. 

Discipline VIII I 1 c; d. 

Retirement II A 1 c. 

Enlistment after See Enlistment I D 3 c (2); (18); (e); [g)] 

{i);{k);{l). 

Expulsion from Army See Desertion V F 4. 

Forfeitures with See Pay and allowances III C 1 a (1) to 

(2); If; 2c (4). 

Fraudulent enlistment after See Enlistment I A 9 f (2); (4); (7) (o). 

Illegal, revocable See Discharge XVI G to H. 

Issue of clothing after See Pay and allowances II A 3 a (4) 

ie) [1]. 

Not revocable See Discharge XV B. 

Of retired soldier See Retirement II F 3. 

Renders service not honest and faithful See Enlistment I D 3 c (11). 

Sentence of imprisonment includes See Discharge XIII D 5. 

* But in the case of a contract surgeon see G. O. No. 206, War Dept., Wash., Dec. 
17, 1908, which publishes the findings of a court of inquiry, which court investigated 
the conduct of a contract surgeon, and recommended that his connection with the 
military service be terminated. 



DISMISSAL DEAFT. 687 

DISMISSAL. 

See Office IV E to F. 

Effect on status See Discipline VIII I 1; 1 a; b. 

For political activity See Civilian employees XI A 4. 

Irrevocable after execution See Discipline XI V E 9 f ( J ); XV C 1. 

Is dishonorable See Pardon XV B . 

Of officer See Office IV E to V. 

Mandatory articles See Discipline XII B 3 i. 

Mitigation of. See Articles of War CXII Ala. 

Not revocable See Discharge XVII A. 

Of cadet, not revocable See Discharge XVIII A. 

Of officer while prisoner of war See War I C 11 d (1). 

Of volunteer See Office V A 7 f . 

Payment to See Pay and allowances I A 1 a. 

DISOBEDIENCE. 

See Articles op War XXI A to E 2; 
LXII C 12. 

DISRESPECT. 

By soldier See Articles of War LXII C 11. 

Of superior See Discipline V D 2 b. 

Toward commanding officer See Discipline II D 13 a; 17 a. 

DISTRICT OF COLUMBIA. 

Laws of, over military reservation See Public property V H 2 c. 

National Guard of See Militia XVI to XVII. 

Naval Militia of See Militia XVIII B. 

Volunteers See Office IV A 2 d (3) (a). 

DIVINE SERVICE. 

Attendance at See Articles of War LII A; B. 

DIVISION COMMANDER. 

• See Articles of War LXXII A to I 3 a (1). 

Assignment to command by See Command IV A; B. 

Reviewing authority See Discipline XIV A 2. 

DIVORCE. 

See Articles of War LXI B 14. 

DOCK. 
Repair of. See Appropriations LII. 

DOUBLE AMENABILITY. 

See Articles of War LIX D; L 1. 

Custom as to punishment under See Discipline XII B 2 c. 

Of soldier • See Articles of War LIX L 2; CII A to I. 

Discipline III E 4; VIII D 4; H 3. 

DRAFT. 

During Civil War See Desertion XVI Dig. 

Enlistment II A to F. 

Muster-in not necessary See Volunteer Army II B 1 f to g. 

0/ deserter See Desertion VI C. 



588 DBAYAGE DWELLING. 

DEAYAGE. 

Of equipment for militia See Militia VII A. 

DROPPING. 

Deserter See Discharge XIII A 2. 

Discipline VIII I 1. 

Noncomm,issioned officer for desertion: re- 
turns him to position of private See Desertion VII A 1. 

Not legal evidence of desertion See Desertion IX F. 

Officer, for desertion See Desertion XX to XXI. 

Enlistment I B 3 b. 

Officer is discharged without honor See Discharge III F 2; XVI H. 

Removal of charge when dropped erroneously .See Desertion XVI C 4 to 7. 
Volunteer for desertion See Volunteer Army IV D 1 a (5) (6). 

DRUG. 

Prescription See Discipline V D 5. 

Use of. See Articles op War XXXVIII A. 

DRUMMED OUT OF SERVICE. 

See Desertion I D. 
By sentence See Discipline XII B 3 h. 

DRUNKENNESS. 

Defense See Discipline V D 5. 

Enlistment while suffering from See Enlistment I A 9 f (5). 

Evidence of. See Discipline XI A 8; 8 a; XII A 12 a. 

Off duty See Discipline II D 18 a. 

On duty See Articles of War XXXVIII A to C 1; 

LXIIC13;14. 

Public : See Articles op War LXI B 6; 7; LXII D. 

Discipline VIII B. 
Punishment for ; See Discipline XII B 2 d. 

DUEL. 

See Articles of War XXVI A; LXII D. 

DUPLICATION OF PAY ACCOUNT. 

See Articles op War LX A 1; LXI B 15. 
Trial for • See Discipline III E 5 a; V D 2 c. 

DUTY. 

Extra by noncommissioned officer See Army I B 1 a (3). 

Extra by soldier See Pay and Allowances I C 6 to 7. 

Mounted See Pay and Allowances I B 7 to 8. 

Offenses committed while on See Articles of War LXII C 5 a. 

Paroled prisoner of war See War I C 11 d (2) (c). 

Relief from See Communications I B 2; C. 

Target practice See Claims V. 

Trial judge advocate See Discipline IV C 1 to 4 b. 

Unauthorized badges can not be worn 07i See Insignia of Merit II A 2 a; b. 

Unauthorized medals can not be worn on. . .See Insignia of Merit I D. 

DWELLING. 

Forcible entry See Desertion III B. 

Discipline I A 2; 2 a. 



EASEMENT EIGHT-HOUR LAW : SYNOPSIS. 589 

EASEMENT. 

Expenditures on land subject to See Appropriations XVIII. 

Title subjeclto See Public Property VIII C. 

In shore line See Command V A 3 f . 

EFFECTS. 

Deceased officer or soldier See Articles op War CXX VI A ; CXX VII 

A. 
Officer vjho deserts See Desertion XX C. 

EFFICIENCY REPORT. 

By regimental commander See Articles op War XXIX B. 

EIGHT-HOUR LAW.^ 

I. SCOPE OF THE ACT OF AUGUST 1, 1892 Page 589 

n. "PUBLIC WORKS OF THE UNITED STATES"? Page590 

m. REQUIREMENTS AS TO PREPARATION OF CONTRACTS FOR WORK 

COMING WITHIN THE PURVIEW OF THE ACT OF AUGUST 1, 1892. 

DUTIES OF OFFICERS HAVING CHARGE OF "PUBLIC WORKS OF 

THE UNITED STATES" IN REGARD TO ENFORCEMENT OF THE 

ACT OF AUGUST 1, 1892 Page 591 

IV. APPLICATION OF THE ACT OF AUGUST 1, 1892, TO RIVER AND 

HARBOR WORK. 
V. WHAT CONSTITUTES AN "EXTRAORDINARY EMERGENCY" UNDER 

THE ACT OF AUGUST 1, 1892? 
VI. HOW EXISTENCE OF AN "EXTRAORDINARY EMERGENCY" IS TO 

BE DETERMINED Page 592 

Vn. FOREMEN AND INSPECTORS W^HO DO NOT COME WITHIN THE 

APPLICATION OF THE ACT OF AUGUST 1, 1892 Page 593 

Vm. CERTAIN CASES TO WHICH THE ACT OF AUGUST 1, 1892, DOES NOT 

APPLY Page 594 

IX. WHAT CONSTITUTES EIGHT HOURS WORK Page 595 

X. CERTAIN PERSONS WHO COME, AND CERTAIN PERSONS WHO DO 
NOT COME, WITHIN THE APPLICATION OF THE ACT OF AUGUST 
1, 1892. 
XI. WHO SHOULD INSTITUTE PROCEEDINGS IN THE CASE OF A VIO- 
LATION OF THE ACT OF AUGUST 1, 1892. 
SECRETARY OF WAR HAS NO AUTHORITY TO REQUIRE OF BID- 
DERS AND CONTRACTORS FOR SUPPLIES THAT THEY SHALL 
OBSERVE AN EIGHT-HOUR LAW. 
THE ACT OF AUGUST 1, 1892, IS PENAL AND GIVES NO CAUSE OF 
ACTION TO RECOVER Page 596 

I. The original statute on this subject — the act of June 25, 1868, 
incorporated in section 3738, R. S. — merely provided that eight hours 
should "constitute a day's work" for laborers, etc., employed by the 
United States. It has been held by the Supreme Court ^ (U. S. v. 
Martin, 94 U. S., 400), that this enactment was merely "a direction 
by the Government to its agents," not "a contract between the Gov- 

' Prepared by Lieut. Col. John Biddle Porter, judge advocate, assistant to the 
Judge Advocate General. 

2 And see 19 Op. Atty. Gen., 685. 



590 EIGHT-HOUR LAW II. 

ernment and its laborers, that eight hours shall constitute a day's 
work," and that it did not "prevent the Government from making 
agreements with them by which their labor may be more (or less) than 
eight hours a day." The act thus failed of its apparent object. To 
cure this defect the act of August 1 , 1892 (27 Stat. 340) was passed. 
Held, therefore, that the term "pubUc works of the United States," 
used in the first section of the later act, should not be narrowly con- 
strued. P. 55, 155, Aug. 22, 1892; C. 5^29, Dec. 2, 1898; 18811, 
Nov. 4, 1905. 

II. Held, that the construction of levees on the banks of the Mis- 
sissippi River, in accordance with the plans of the Mississippi River 
Commission, was a public work of the United States in the sense of 
the act of August 1, 1892 (27 Stat. 340), although the United States 
did not own the land.^ A proprietorship in, or jurisdiction over, the 
thing constructed is not necessary. The United States expends an- 
nually more than $20,000,000 for the improvement of rivers and har- 
bors, but the greater part of this is done without acquiring title to, or 
jurisdiction over, the premises. ^ The question under the act is not in 
whom is the title or jurisdiction, but who is doing the work. The 
construction of these levees is a particular work appropriated for by 
Congress and to be contracted for by the United States. It is there- 
fore one of the "public works of the United States," and subject to 
the provisions of this statute, P. 55, 155, Aug. 22, 1892. It has been 
held that the following are "public works." (1) Works of river and 
harbor improvement; U. S.v. Jefferson (60 Fed. Rep., 736). Under 
this head would fall the street work and the construction of the large 
sewers of the District of Columbia. (2) All field works constructed 
for public use, as railways, canals, waterworks, roads, etc. Ellis v. 
Com. Council of Grand Rapids (82 N. W. Rep., 244); Winters v. City 
of Duluth (84 N. W. Rep., 788, 789). (3) Sewers have been ex- 
cluded, though built by the public, where the cost is charged to abut- 
ting owners; City of Denver v. Rhodes (9 Colo., 554; 113 Pac. Rep., 
729, 733). (4) Roads are public works; Lane v. State (43 N. E. 
Rep., 244, 245). The only utterance of this office on the subject will 
be found in paragraph I ante (Eight-hour law) in which it is said that 
the words "public works" as used in the act of 1892, should not be 
narrowly construed. It clearly covers works of river and harbor im- 
provement,^ and probably public buildings as well, but there is no 
decision that expressly includes buildings. C. 18811, Nov. 4, 1905. 

Where a vessel belonging to the United States is moored to a dock, 
wharf, or landing, owned by the Government, held that the work of 
repairs on such vessel by a contractor would not be on a "public 
work" of the United States as contemplated in the act of August 1, 
1892. _ C. 20169, Apr. 26, 1910. 

Having regard to the opinions of the Attorney General * that the 
law is not applicable to a vessel of the Navy under construction in the 
operation of a contract wdth a private establishment, lield, that it is 
likewise inapplicable to repairs on a Government transport which are 
similarly made by contract. C. 20169, Oct. 8, 1906, and Aug. 2, 1907. 

» U. S. V. Garbish, 222 U. S., 257. 

2 26 Op. Atty. Gen., 30. 

3 See, however, on this point Ellis v. U. S. (206 U. S., 245). 

* 26 Op. Atty. Gen., 30; Ihid., 36. See, however, the act of Mar. 4, 1911 (36 Stat., 
1287), and the opinion of the Comptroller thereon (XVIII Comp. Dec, 93). 



EIGHT-HOUR LAW III. 591 

Where a contract is given for repairs to a Government vessel, the 
repairs to be made at a Government dock or under conditions which 
continue the vessel in the active control of the Government authori- 
ties, the eight-hour law may perhaps apply, but when, as in the case 
before us, the vessel is turned over to a contractor for repairs, at the 
contractor's plant, and so, for the time being, out of the active control 
of the Government, held, that the restrictions of the act of August 1, 
1892, do not apply. G. 20169, Feb. 27 1907, and Feb. 9, 1909. 

III. Held, that it was not essential that the requirement of the act 
of August 1, 1892, be embodied in a contract, the law itself being self- 
acting.* The responsibility rests on contractors to comply with it, 
irrespective of the terms and conditions of their contracts. The 
officers who enter into contracts on behalf of the United States are 
not charged with the duty of enforcing the law with reference to 
those with whom they contract; the latter being directly responsible 
in the matter.^ Any construction by the War Department of the 
requirements of the act would, if erroneous and not sustained by the 
courts, be no protection to contractors. P. 55, 311, Sept. 7, 1892; C. 
11459, Nov. 4, 1901; I6IO4, Mar. 29, 1904; 16282, May 7, 1904; 
18811, Nov. 4, 1905. 

IV. Inquiry having been made of the War Department by certain 
contractors whether the men employed on dredges, scows, and tugs on 
Lake Erie, under contracts with the United States, were to be regarded 
as excepted from the application of the act of 1892,^ held that it was 
not the duty or province of the War Department to determine such 
questions, but that the same were for the courts to decide, on trials, 
under the second section of the act, of persons charged with violations 
of its provisions. Neither the War or other Department of the Gov- 
ernment can lay down rules, or make constructions of the law, for 
contractors, which would effectually protect them were they brought 
to trial.* P. 57, 36, Dec. 13, 1892; C. 18811, Nov. 4, 1905. 

Held, based on the decision in U. S. v. Jefferson (60 Fed. Eep. 736), 
that, while the ordinary status of certain men was that of seamen and 
as such not within the application of the act of August 1, 1892, while 
actually engaged in "labor upon public work in removing snags and 
obstructions" the men came within the application of the law. C. 
20169, Mar. 16 and 21, 1907. But later, in view of the case of Ellis 
et al. V. U. S. (206 U. S. 246), in which it was decided that persons 
employed in the work of dredging and rock excavation in the improve- 
ments of rivers and harbors of the United States are not employed 
"upon any of the public works of the United States" within the mean- 
ing of the act of August 1, 1892, and that the persons so employed, 
whether on tugs, scows, or dredges, are not "laborers and mechanics" 
within the meaning of that act, but are to be regarded as seamen 
employed on vessels withm the statutes and decisions relating to such 

* See, however, the requirements of par. 742, A. R. (1910). U. S. v. Garbish, 222 
U. S., 257. 

^ But see 26 Op. Atty. Gen., 64, as to duty of engineers to report violations of the law. 
3 See Ellis v. U. S. (206 U. S., 246). 

* In a communication to the Secretary of War of Aug. 29. 1892, the Attorney 
General, whose opinion had been asked with regard to the application in general of 
the act to the "construction of levees on the Mississippi River," declines to give an 
official opinion with a view to the guidance of persons who may propose to enter 
into contract relations with the United States, in the absence of a special case 
requiring the action of the Secretary. See 20 Op., 459. 



592 EIGHT-HOUR LAW V. 

employment; lield, that since the eight-hour law is clearly not appli- 
cable to dredging operations there is no requirement that in contracts 
for work covered by the above decisions, such as dredging, snagging, 
and rock excavation, a reference to the eight-hour law should appear. 
C. 20169, May 22, 1907. 

While persons employed on dredges and scows in dredging a channel 
in a harbor are not, within the meaning of the act of August 1, 1892, 
laborers or mechanics employed on any of the public works of the 
United States (because they are seamen) lield, that laborers employed 
simply to load vessels or barges are not seamen within the meaning of 
the foregoing premises. G. 20169, Sept. 23, 1909, June 14, 1910. 

Where stone or other material is delivered on a breakwater from a 
floating plant, held that the work of placing, bedding, or arranging the 
stone or material oq the breakwater does not come under the provision 
of the act of August 1, 1892, if the persons employed on the floating 
plant do the work; however, if one person is continuously employed 
m such work, it would seem that he should be regarded as for the tune 
engaged as a laborer, and could not be required to work in excess of 
eight hours m one day. C. 20169, Apr. 26, 1910. ^ , 

V. The term "extraordinary emergency," employed in the first 
section of the act of August 1, 1892 (27 Stat., 340), can not properly 
be construed in advance as referring or applicable to any particular 
class of cases. The question whether there is or was such emer- 
gency should be left to be determined by the facts of each special 
instance as it arises. A case in which it appeared that a compliance 
with the statute was not possible, might well be held to be one of 
"extraordinary emergency." P. 55, 311, Sept. 7, 1892; 60, 263, 
July 1, 1893; C. 1365, May 18, 1895; 14790, June 12, 1903.^ 

Merely economical considerations will not bring a case within the 
exception as an "extraordinary emergency;" there must be some 
sudden unexpected happening.* C. 20169, July 25, 1908. 

Under the act of August 1, 1892 (27 Stat., 340), circumstances of 
mere emergency are not sufficient to warrant an extension of the 
hours of labor but the emergency must be extraordinary. C. 20169, 
Oct. 8, 1906. 

Held, that ordinary work of repair on an Army transport, whether 

Eerformed by a contractor, or by laborers and mechanics employed 
y the Quartermaster's Department, does not constitute an extra- 
ordinary emergency within the meaning of the act of August 1, 1892. 
C. 20169, Oct. 8, 1906. 

Under the order of the President of September 11, 1907, directing 
that all persons employed as watchmen, lock tenders, lock em- 
ployees, etc. (see par. 742, A. R., 1910), shall "be considered as 
covered by the eight-hour law, and that exceptions only be made by 
the Secretary himself on the case being reported to him," held that 
exceptions were only intended to be made in cases of emergency or 
where, owing to the nature of the duties of the particular employee, 
he should not be regarded as within the President's order or as a 
laborer or a mechanic within the meaning of the law. C. 20169, 
May 23, 1908. 

VI. No provision is contained in the act of August 1, 1892 (27 
Stat., 340), for the suspension of its operation, and the Secretary of 

1 U. S. V. Garbish, 222 U. S., 257. 



EIGHT-HOUK LAW VII. 593 

War has no power to suspend it as to certain work or places of work 
on the theory that an "emergency" exists as to the same. Nor can 
he lay down in advance any general rule as to what would be such 
an emergency, as would relieve an officer or contractor from liability 
or give him an immunity from prosecution. The question of the 
existence of an emergency is to be determined, in the first instance, 
by the person carrying on, or in charge of, the work; and, in the 
second, by the court, if the case comes before one.^ It may be said 
generally that when the emergency can be foreseen it is not extraor- 
dinary; that increased expense and inconvenience can not constitute 
an emergency when they can be foreseen and guarded against. P. 

55, 153, 324, 386, 469, Aug. 22, Seyt 8 and 23, and Oct. 5, 1892; 

56, 330, Nov. 14, 1892: C. 1365, May 18, 1895; 9137, Oct. 19, 1900; 
14005, Jan. 19, 1903; 14790, June 12, 1903; 20169, Oct. 5, 1906. 

If "an extraordinary emergency" exists it is one of time and is 
created by the requirement of the existing act of appropriation 
which requires the filtration plant to be completed on a given date; 
and the determination of its existence is a ciuestion of fact, to be 
determined by the officer in charge of the work, whose conclusion 
in that regard is subject to review by the courts should an action 
be brought for the enforcement of the penalty wliich is imposed for 
its violation in the act of August 1 , 1892 (27 Stat. 340) . The applica- 
tion of the remedy which is provided in the statute above cited is, by 
its express terms, vested in the courts and not in the executive 
departments of the Government. C. I6IO4, Mar. 29, 1904; 20169, 
Oct. 22, 1909. 

VII. At the Leavenworth military prison there are employed cer- 
tain civihans as "foremen of mechanics," who are paid, under the 
sundry civil appropriation act, a stated salary of $1,200 fer annum, 
and whose duty it is to direct the labor of the prisoners. The regula- 
tions framed for the government of the military prison, pursuant to 
section 1345, R. S., recpiire more than eight hours' labor p^r diem of 
the prisoners, and consequently more from these foremen. Held that 
the latter were not entitled to the benefits of the act of August 1, 
1892, chap. 352, as "laborers or mechanics," the statute not being 
apphcable to them.- P. 65, 220, June 7, 1894; G. 20169, Oct. 4, 1907. 

On the question of whether foremen and timekeepers on duty with 
gangs of workmen employed by contractors on public works, as well 
as night watchmen employed by contractors to protect their property 
come within the application of the act of August 1, 1892 (27 Stat. 340), 
Tield that the persons referred to can not properly be held to come 
within the terms "laborers and mechanics" as used in the statute 
in question. ^ C. 20169, Dec. 13, 1907. Held, that a man whose 
employment is of a high grade, whose work is not manual in any 
sense, but whose employment is associated with mental labor and 
skill only, is not a laborer; nor can he be deemed a mechanic. If we 
apply the foregomg opinion to an inspector in the Quartermaster's 
Department, stationed in a factory, such an inspector is not a 
laborer or mechanic mthm the application of the act of August 1, 
1892, since he has no manual duty to perform, but is a liigh-grade 
employee, as is shown by his salary and also the fact that he has 
been required to pass an educational examination, and has no work 

' U. S. V. Garbish, 222 U. S., 257. 2 21 Op. Atty. Gen. 32; 26 id. 822. 

93673°— 17 38 



594 EIGHT-HOUR LAW VIII. 

to perform not associated with mental labor and sldll. C. 20169, 
Aug. 17, 1906. 

VIII. The act of August 1, 1892 (27 Stat. .340), provides that it 
shall be unlawful for any officer of the United States Government or 
any contractor or subcontractor whose duty it shall be to employ, 
direct or control the services of laborers or mechanics (on public 
works) to require or permit any such laborer or mechanic to work 
more than eight hours in any one calendar day except in case of 
extraordinary emergency. But where a subcontractor purchased 
window blinds, sashes, etc., for a public building at a factory in 
which the employees were working more than eight hours a day, but 
over whom he had no control, it was held that the statute did not 
apply.i C. 7323, Nov. 21, 1899; 18831, Nov. 9, 1906; 20189, May 
18, 1911. 

On the question of whether the act of August 1, 1892 (27 Stat. 340), 
applied to contractors furnishing the Quartermaster's Department with 
supplies, held that it did not.^ Whether or not laborers or mechanics 
are employed on "public works" depends largely on the question of the 
title to the articles or materials upon which they are at work. If the 
latter belong to the contractor tlie laborer or mechanic can not be 
regarded as employed upon public works. Nor is this view of the 
question in any way affected by the fact that Government inspectors 
may be employed to inspect and report upon the various stages in the 
manufacture of any supplies for the Government. C. 20169, July 25, 
1906. 

Where lock gates were delivered in sections by a contractor, and 
erected in place, lield that the act of August 1, 1892 (27 Stat. 340), 
applied to the work of assembling the sections at the lock site and to 
the erection of the gates in the lock by the contractor. C. 20169, 
Apr. 26, 1910. Hdd, per contra, that the work involved in the 
construction and assembling of a lock gate in the shops of a con- 
tractor, the gate to be later erected in the lock bv the United States, 
did not come under the act of August 1, 1892*^(27 Stat. 340). C. 
20169, June 21, 1909. 

The installation of electric lamps, conduits, etc., by a private com- 
pany in the public parks of the District of Columbia, and on the high- 
way bridge, the lamps, etc., to remain the property of the company, 
Jield, not to be a ''public work" of the United States or of the District 
of Columbia. C. 20169, July 26, 1909. 

Wliere materials or supplies, such as lumber or cement, are delivered 
by a contractor on land or in a warehouse owned or leased by the 
United States, held, that the the work involved in unloading, assorting, 
and piling such materials or supplies should not be regarded as being 
upon a "public work" within the meaning of the act of August 1, 1892 
(27 Stat. 340), if they shall liave been purchased by the United 
States or by a contractor on a public work from an independent con- 
tractor as supplies and materials to be put into the actual work of 
construction, such materials being delivered by the independent con- 
tractor, who furnishes the same under his contract and is required to 
deliver the same. C. 20169,^ Apr. 26, 1910. 

Where a contractor quarried stone on the shore in the vicinity of 
the site of a proposed dam which he was under contract to construct 

» See 20 Op. Atty. Gen. 454; 26 id. 30; XVIII Comp. Dec, 93. 



EIGHT-HOUR LAW IX. 595 

for the Government, Tield, that neither the act of August 1, 1892, nor 
tlie Amiy Regulations were applicable to the preliminary work of 
quarrying stone along the shore in the immediate vicinity of the dam. 
C. 20169, July 27, 1909. 

Wliere a contractor built, on private ground, a crib, to be later 
floated into position and sunk as the base of a pierhead he had con- 
tracted to build for the Government, held, that the crib could not be 
construed as coming under the decisions and opinions respecting the 
procurement of manufactured articles or materials for use in public 
work, and that the labor on the crib must be considered to be on a 
"public work" within the meaning of the act of August 1, 1892. 
C. 20169, June 11, 1909. 

IX. An executive officer can not, in view of section 3738, R. S., 
legally direct that laborers, workmen, and mechanics emploved by and 
on behalf of the Government shall be given time without loss of pay 
to vote on election day, if such indulgence would reduce the number 
of working hours below eight. C. 2692, Oct. 20, 1896. Held, that 
the law (act of Aug. 1, 1892) is not violated, as to the hours of work 
of employees, so long as the aggregate of their several periods of duty 
does not exceed eight hours in a calendar day. C. 20169, Jan. 9, 1908} 

Wliere a laborer or mechanic has worked for eight hours, in any one 
calendar day, for the United States, held, that it would be a ^aolation 
of the law for a contractor, having a knowledge of that fact, to require 
or permit the laborer or mechanic to work for additional hours, in the 
same calendar da}-, upon anv public work of the United States. C. 
20169, Dec. 26, 1907. 

The law and regulations require that the laborers and mechanics 
employed on a dam being built by the Government shall not be re- 
c[uired to work in excess of eight hours in any one calendar day; and 
it would be an evasion of the law to employ them for less than eight 
hours on the work of dam construction, and then put them on quarry- 
ing work in such manner that the aggregate of the two work periods 
would exceed eight hours. C. 20169, July 27, 1909. Held, that to 
require a man to work in a quartermaster's stable for seven hours and 
further require that he shall sleep in the stable during the night, until 
relieved in the morning, in order to be available in case of fire or acci- 
dent, would not be a violation of the act of August 1, 1892. C. 20169, 
Nov. 11, 1907. 

X. Held, that a "hostler" at an arsenal is neither a "laborer" nor 
a "mechanic" within the meaning of the eight-hour act of 1892. 
C. 3673, Nov. 26, 1897; 20169, May 2, 1911. Similarly heU with 
respect to lock employees on river locks.^ C. 1^811^, Aug. 20, and July 
16, 1901.^ 

Janitor for Shiloh National Park Commission, although his duties 
would include fi.eld work, held, not to be a laborer within the mean- 
ing of the eight-hour law.* C. 20169, May 2, 1911. 

Stevedores and longshoremen come within the application of the 
act of August 1, 1892. C. 20169, Jan. 15, 1907. 

1 26 Op. Atty. Gen., 64; id., 605. 

2 See 20 Op. Atty. Gen., 459; 26 id., 64; id., 623; and A. R., 742 (1910). 

3 On Sept. 11, 1907, the President ordered that all persons employed as watchmen, 
lock tenders, and lock employees be considered as covered by the eight-hour law. 
See also in this connection par. 742, A. R. (1910). 

* 26 Op. Atty. Gen., 623. 



596 EIGHT-HOUR LAW ELIGIBILITY. 

Held, that all laborers employed by the officers of the Soldiers' Home 
are strictly "employed by the Government of the United States" and 
that the act of August 1, 1892, is applicable to them. C. 20169, Dec. 
9, 1907} 

Held, that the act of August 1, 1892, is applicable to laborers and 
mechanics employed on the public work of the United States in the 
PhHippine Islands. C. 19702, May 12, 1906. 

The act of August 1, 1892, held not to apply to laborers and mechan- 
ics employed by the Board of Road Commissioners for Alaska. C. 
20169, May 27, 1907? 

XI. It is not the duty of the Secretary of War to institute proceed- 
ings for violations of the act of 1892. Parties who think the law is 
being violated by contractors should submit their complaints to the 
proper United States attorney. C. 7323, Nov. 21, 1899; 16104, Mar. 
29, 1904; 16282, May 7, 1904. Held, that it is beyond the authority 
of the Secretary of War to impose a condition upon bidders or con- 
tractors that articles which they undertake to furnish for the use of 
the military establishment shall be manufactured in shops or places 
in which eight hours of labor, and no more, are required of the me- 
chanics and operatives who are engaged in their production or manu- 
facture. C. 20169, Mar. 13, 1908. Held, that the act of August 1, 
1892 (27 Stat., 344), is penal in its nature and gives a claimant no 
cause of action to recover for work in excess of eight hours a day. C. 
20169, Feb. 11, 1907, Mar. 16, 1907, and Oct. 29, 1908. 

ELIGIBILITY. 

Civilian employees for campaign badge See Insignia of merit III B 3. 

Discharged soldier for certificate of merit. . . .See Insignia of merit II G. 

Divorced man for appointment as cadet See Army I D 1 c (1). 

For appointment as officer See Desertion XX F. 

For appointment as second lieutenant See Office III Alb (5); (5) (a). 

For appointment or enlistment after dis- See Office IV E 1 c; 2 f. 

missal. 
For appointment to Medical Reserve Corps.. See Army I G 3 d (4) (a). 

For campaign badge See Insignia op merit III B 2. 

For commission in Volunteers See Militia XVII A. 

For enlistment of deserter See Desertion VI D. 

For enlistment, not restored by pardon See Pardon XIV. 

For enlistment See Enlistment I A 9 c to d; 10; B 3 to D. 

See Pardon XIV. 

For General Staff. See Office III Die. 

For gunner's badge See Insignia of merit III C. 

For medal of honor See Insignia of merit I A 2 d ; d (1). 

For promotion of officer under suspension See Pardon XV C 2 a. 

from rank. Office III B 1 a (2). 

For reappointment as cadet See Army I D 1 d (3); 2 b. 

For reenlistment See Enlistment I D to II . 

Officer ineligible for certificate of merit See Insignia of merit II I. 

Philippine Scout officer, for duty with militia See Militia VI A 2 d. 

'Act of Aug. 1, 1892, does not apply to laborers and mechanics in the employ- 
ment of the Panama Railroad & Steamship Line. 25 Op. Atty. Gen., 465. 

2 See Moses v. U. S., 116 Fed. Rep., 526. 

The act of Aug. 1, 1892, shall not apply to alien laborers employed in the construc- 
tion of the Isthmian Canal within the Canal Zone (Panama), act of Feb. 27, 1906; nor 
to unskilled alien laborers and to the foreman and superintendents of such laborers 
employed in the construction of the Isthmian Canal within the Canal Zone, act of 
June 30, 1906 (24 Stat., 34 and 669). 



EMANCIPATED MINOR EMPLOYMENT. 597 

Retired officers as members of general court- See Retirement I K 2 f. 

martial. 

Retired officer for advchacement in grade See Retirement I C 2 a; 2 b. 

Retired officer for membership on courts of See Retirement I K 2. 

inquiry. 

Retired officer to hold civil office See Retirement I G 3 to 4. 

Retired soldier for certificate of merit See Insignia of merit II E. 

Retired soldier to hold civil office See Retirement II D to E . 

To command See Command I A. 

To command by Adjutant General See Command I A 1 . 

To command by General Staff officer See Command I A 1 a. 

To command by marine officer See Command I B. 

To command by quartermaster See Command V B 4 . 

To hold office , See Pardon XVI A 1. 

Office I A. 

EMANCIPATED MINOR. 

See Discharge XII CI; 2. 
Residence II B. 
Enlistment of. See Enlistment I B 1 b (5). 

EMBEZZLEMENT. 

See Articles op War LX F; LXII B; C 2 
to 4. 

Desertion V B 18 a. 

By commissary sergeant See Enlistment I D 3 c (18) (i). 

By officer See Enlistment I D 3 d (3). 

By officer of soldier's pay See Articles of War LXI B 9 c. 

By recruit See Desertion XXII A. 

Charging of.... See Discipline II D 16 b. 

Defense of. See Discipline XII A 12 b. 

Evidence of. See Articles of War LX A 4. 

Discipline XI A 18. 
Failure to turn public money into Treasury. . See Public money I A. 

Pardon of. See Pardon VII A. 

Post exchange money See Government agencies II B 5. 

EMERGENCY. 

See Eight-hour law V. 

EMPLOYER'S LIABILITY. 

For injuries See Civilian employees XII to XIII. 

EMPLOYMENT. 

Abandonment of. See Civilian employees XIV A. 

Alien and convict labor See Contracts XXIII to XXIV. 

Army musicians See Army bands I A to D 3. 

Army to aid civil authority See Army II to III. 

Authorized civil, of officers See Office IV A 2 e to C. 

Of alien See Alien VII. 

Position of master machinist See Civilian employees V C. 

Retired soldier See Retirement II D 1 ; E to F. 

Soldier as telegraph operator See Pay and allowances I C 6 a. 

Soldier on furlough See Absence I C 4 d (1) ; (2). 

Army I C 1. 



598 ENEMY ENLISTMENT: SYNOPSIS. 

ENEMY. 

See Pardon X. 

As prisoners of war See War I C 11 c to d. 

Capture of prisoners by See War I 11 d to e. 

Courts of: during war See War I (J 7 a. 

Evidence by See Discipline XI A 6 a. 

Inhabitants of insurrectionary States See Articles op War XLV B. 

In Philippines See Claims VII A. 

Laws of. , See War I C 8 a (1 ) . 

ENGINEER BRIGADE, UNITED STATES VOLUNTEERS. 

See Volunteer Army III A to B. 

ENGINEER DEPARTMENT. 

Duties of, in respect to river and harbor work 

and seacoast defense See Army I G 3 c (1). 

Navigable waters X B to C. 

ENLISTED MEN. 

See Army I E 1 to 5. 

Appointments as officers See Office III A 1 b to c; 6 b. 

Can not be officers' servants See Articles of War XXI G 2 a. 

Army I C 1. 

Clerical duty See Civilian employees VIII A. 

Clothing allowance See Pay and allowances II A 3 a to b. 

Court reporter See Discipline IV B 2 a. 

Desertion of. See Desertion. 

Discharge of See Discharge. 

Duty with militia See Militia VI A 2 c. 

Heat and light to See Pay and allowances II A 1 d to e. 

Line of duty status See Line of duty II; III. 

Muster in during Civil War See Volunteer Army II B to C. 

Pay can not be attached See Army I C 2. 

Pay of. See Pay and allowances I C to D . 

Purchase of supplies from See Contracts XV to XVI. 

Rank of See Rank I D to E. 

Residence See Residence. 

Retirement of. See Retirement II to III. 

Taxation of. See Tax I to II. 

Volunteers See Volunteer Army III B to C. 

ENLISTMENT. 
I. VOLUNTARY. 

A. Enlistment is a Contract Page 602 

1. All enlistments are voluntary Page 603 

2. Oath not essential to enlistment. 

a. Statement of age. 

3. Constructive contract of enlistment. 

a. Civilian acquiescing in illegal sentence by general court-martial. 

b. Military convict pardoned and returned to service. 

c. Officer obeys illegal order reducing liim to ranks. M 

4. Enlistment on Sunday legal Page 604 m 

5. Pay may be reduced pending enlistment. 

6. Enlistment for 'service at particular place not authorized. 

7. Volunteers enlisted directly into the United States service. 

8. Date of enlistment. 

a. Fixed in oath. 

b. Date antedated to correct delay by the Government. 

c. Date not antedated; no delay by Government Page 605 



I 



ENLISTMENT : SYNOPSIS. 599 

I. VOLUNTARY— Continued. 

A. Enlistment is a Contract — Continued. 

9. Fraudulent contract of enlistment. 

a. Defined. 

b. Elements of. 

c. Enlistment of ineligibles without misrepresentation. 

(1) Minor without consent of parents. 

(2) Discharged felon Page 606 

d. Deserter from Navy fraudulently enlists. 

e. Deserter from Marine Corps fraudulently enlists. 

(1) Member of National Guard fraudulently enlists. 

f. Fraudulent enlistment not void. 

(1) Enlistment of soldier discharged without honor. 

(2) Enlistment of soldier dishonorably discharged for deser- 

tion. 

(3) Enlistment of escaped military convict Page 607 

(4) Enlistment of discharged military convict. 

(5) Enlistment of men ineligible under sections 1116 and 

1118, Revised Statutes. 

(6) Enlistment of minor without consent of parents. 

(7) Nonstatutory fraudulent enlistment. 

(a) Married man Page 608 

(b) Concealment of disqualification not statutory. 

(8) Enlistment in violation of fiftieth article of war. 

g. Disposition of fraudulently enlisted soldiers. 

(1) Dishonorably discharged soldiers who have enlisted. 

(2) Minors who have enlisted Page 609 

(3) Deserters who have enlisted . 

(4) Soldiers discharged on certificate of disability who have 

enlisted. 

h. Policy in handling fraudulent enlistment of deserter. 

i. Discharge without honor should not be given after a court haa 
declined to dishonorably discharge a soldier. 

k. Law of contract applies to fraudulent enlistment. 

1. Service under fraudulent enlistment, legal, and if honest and 
faithful ended by an honorable dischai-ge. 

m. Fraudulent enlistment counts for retii-ement Page 610 

n. Service under fraudulent enlistment legal for purpose of earn- 
ing certificate of merit. 

0. Service under fraudulent enlistment counts for continuous 
service unless voided . 

10. Secretary may fix status of certain classes, i. e., married men as 

ineligible for enlistment. 

11. Enlistment of married men may be authorized. 

12. Enlistment of colored men for Coast Artillery Corps not authorized. 
B. Statutory Requirements. 

1. Age limit is 18 to 35. 

a. Maximum age limit. 

b. Minimum age limit. 

(1) Alien, minor, consent of parents who have taken out 

paj^ers. 

(2) Alien, minor, without consent of parents Page 611 

(3) Indian, minor, consent of parents, when minor has taken 

out papers. 

(4) Father is natm-al guardian. , 

(5) Emancipated mine 



600 enlistment: synopsis. 

I. VOLUNTARY— Continued. 

B. Statutory Requirements — Continued. 

2. Period. 

a. Three years; act of August 1, 1894 (28 Stat., 216). 

b. Time lost to be made good. 

(1) Time not made good due to fault of Government. 

c. In an emergency a soldier may, with his consent, be continued 

in service for more than three years. 

d. Enlistment for thi-ee years or during the war Page 612 

e. Enlistment for two years unless sooner terminated. 

f. Held because of exigency of service. 

g. Philippine Scouts can not be held in United States beyond 

term of enlistment to participate in an exposition. 
h. Can't be held in order to pay forfeiture. 
i. Held when too sick for discharge Page 613 

3. Statutory ineligible classes. 

a. Pardon does not restore a felon's eligibility. 

b. An officer in desertion ineligible. 

c. Incarceration in a workhouse does not attach ineligibility. 

C. Enlistment in Time of Peace. 

1. Only citizens shall be enlisted. 

a. Foreigner can not enlist. 

b. Native-born minors are citizens. 

c. Alien may enlist in time of war Page 614 

(I) Rule for determining citizenship of aliens who reach 21 
in the United States. 

d. Alien, minor, may enlist in time of war with consent of parents. 

e. Porto Ricans. 

(1) Before eligibility was conferred by act of Congress it 
could be acquired on making the legal declaration of 
intention to become a citizen. 

f. Enlistment of Filipinos in time of peace not authorized. 

g. Enlistment of alien in Cuba in 1902. 

D. Rebnlistment. 

1. No maximum age limit. 

2. Previous service essential. 

a. Previous naval service does not count Page 615 

b. Previous marine service does not count for Army service. 

c. Previous commissioned service does not count for enlisted serv- 
ice. 

3. Honest and faithful service an essential for reenlistment. 

a. Service honest and faithful unless contrary is established. 

(1) Remark "service not honest and faithful" will not be 
entered except after action of a board. 

b. Desertion does not necessarily render service "not honest and 

faithful " for purpose of reenlistment. 

c. Act of August 1, 1894 (28 Stat., 216), provides that no soldier 

shall be reenlisted whose service in last preceding term was 
not honest and faithful. 

(1) Service is presumed to be honest and faithful until sol- 

dier's conduct renders it otherwise Page 616 

(2) Last term may have been in volunteers. 

(3) Felon pardoned, retiurned to duty, service held honest 

and faithful. 



enlistment: synopsis. 601 

I. V^OLUNTARY— Continued, 

D. Reenlistment — Continued. 

3. Honest and faithful service an essential for reenlistment — Contd. 
c. Act of August 1, 1894, etc. — Continued. 

(4) General court-martial con\dcts soldier of felony but does 

not discharge him; may serve honestly and faithfully 
as each case hinges on its own merits. 

(5) Remission of unexecuted sentence of a felon does not 

render previous service honest and faithful. Page 617 

(6) Pardon and restoration to citizenship of a dishonorably 

discharged soldier does not render service honest and 
faithful. 

(7) A pardon does not change previous character. 

(8) Pardon of a discharged military convict not a deserter 

does not render service honest and faithful. 

(9) Remission of unexecuted sentence of military convict 

deserter does not render service honest and faithful. 

(10) Remission of unexecuted sentence of military convict 

not a deserter does not render service honest and 
faithful Page 618 

(11) A dishonorably discharged soldier's service is not honest 

and faithful. 

(12) A discharged military convict's service not honest and 

faithful. 

(13) After mitigation of deserter's sentence of dishonorable 

discharge may receive an honorable discharge with 
service honest and faithful . 

(14) Deserter restored to duty without trial, service may be 

honest and faithful. 

(15) Convicted deserter not sentenced to dishonorable dis- 

charge, service may be honest and faithful. Page 619 

(16) Convicted deserter not sentenced to dishonorable dis- 

charge; board under mistaken belief that service 
which includes desertion can not be honest and faith- 
ful so found; service may be honest and faithful. 

(17) Service of soldier discharged without honor may be 

honest and faithful. 

(18) Secretary of War has discretion to classify service as 

honest and faithful for purpose of reenlistment. 
(a) Honorable discharge; service recorded as not 

honest and faithful. 
(6) Deserter restored to duty without trial, 
(c) Soldier discharged without honor, 
(cZ) Soldier discharged without honor after action of 

board Page 620 

(e) Soldier dishonorably discharged for other cause 

than desertion. 
(/) Soldier dishonorably discharged for desertion. 
(g) Remission of sentence of convicted felon other 

than deserter. 
(Ji) Convicted deserter not sentenced to dishonorable 

discharge; Secretary has discretion... Page 621 



602 ENLISTMENT I A. 

I. VOLUNTARY— Continued. 

D. Reenlistment — Continued. 

3. Honest and faithful service an essential for reenlistment — Contd. 

c. Act of August 1, 1894, etc. — Continued. 

(18) Secretary of War has discretion to classify service as 
honest and faithful for purpose of reenlistment — 
Continued. 

(i) Soldier guilty of offense ordinarily calling for 
dishonorable discharge; Secretary can not 
properly determine such case as honest and 
faithful. 
(k) Discharged military convict; Secretary has dis- 
cretion. 

[1.] Except when service clearly not honest and 
faithful. 
(l) Military convict; Secretary has discretion. 

d. Act of January 12, 1899 (30 Stat., 784), and act of March 3, 

1899 (30 Stat., 1073), for purpose of extra pay to officers and 
enlisted men who served honestly and faithfuly outside of 
the limits of the United States. 

(1) Rule, service classified and manner and character of 

service during enlistment. 

(2) Soldier absent without leave; drunk; died; service not 

honest and faithful. 

(3) Officer confessed embezzlement; service not honest and 

faithful Page 62^ 

(4) Regulations in aid of this statute for classifying service. 

(5) Officer tried by court-martial, nevertheless service 

honest and faithful, rule. 

e. Joint resolution of June 28, 1906(34 Stat., 836), to classify service 

for purposes of pension. 
(1) An officer dismissed; restored to duty, etc., service 

honest and faithful Page 623 

n. INVOLUNTARY ENLISTMENTS. 

A. Drafted Men are Not in Service of United States Until Accepted. 

B. Exemptions. 

1. Act of February 24, 1864(13 Stat., 8), repealed certain exemptions in 

act of March 3, 1863 (12 Stat., 731). 

2. Exemption of religious sects. 

C. Discharge of Drafted Men Who are Not Accepted. 

D. Substitutes Page 624 

E. Drafted Men Who Failed to Report at Rendezvous were Deserters. 

F. Draft of Deserters Legal. 

I A. Enlistment is a contract for military service as a soldier, 
entered into between a civilian and the Government.^ C. 5131, Oct. 

^ Our law not defining enlistment, nor designating what proceeding or proceedings 
shall or may constitute an enlistment, it may be said, in general, that any act or acts 
which indicate an undertaking, on the part of a person legally competent to do so, to 
render military service to the United States for the term required by existing law, and 
an acceptance of such service on the part of the Government may ordinarily be re- 
garded as legal evidence of a contract of enlistment between the parties and as equiva- 
lent to a formal agreement where no such agreement has been had. The forty-seventh 
article of war practically makes the receipt of pay by a party aa a soldier evidence of 



4 



ENLISTMENT I A 1. 603 

IS, 1898; 1916, Dec. 28, 1895; 13103, Aug. 9, 1902; 20237, Aug. 15, 
1906; 20754, Nov. 23, 1906; 205^0, July 6, 1909. 

I A 1. The act of June 20, 1890 (26 Stat., 163), directed the muster- 
ing out of the enhsted men of the artillery detachment at West Point 
and their immediate reenhstment as Army service men in the Quarter- 
master's Department. Held, that it does not authorize their being 
forced into a new contract or reenlisted against their will, as this 
enlistment, like all others, is voluntary. P. 41, 4-60, July, 1890. 

I A 2. While the taking of the oath prescribed by the second article 
of war is not essential to the validity of an enlistment, it is almost inva- 
riably a part of a regular formal enlistment. R. 30, 313, May, 1870; 
42, 203, Mar., 1879; G. 4631, July 22, 1898; 10980, Aug. 5, 1901! 
11284, Sept. 25, 1901; 12140, Mar. 26, 1902. 

I A 2 a. A recruit's declaration as to his age is no part of the oath 
prescribed by the second article of war. There is no law of the United 
States which requires that such declaration shall be under oath. Held, 
therefore, that when the declaration is false the recruit is not mdictable 
for perjury under section 5392, R. S. P. 30, 176, Feb., 1889. 

I A 3 a. A soldier was dishonorably discharged by sentence of 
court-martial on account of desertion, subsequently arrested for the 
same desertion, tried by court-martial and sentenced to forfeiture of 
pay, etc., but not to dishonorable discharge. There is no record of 
his having pleaded a previous conviction. He accepted service afterthe 
second trial and was later honorably discharged. Held, that as the first 
sentence severed him from the service, he must be regarded as a civ- 
ilian until he was agam assigned to duty and that by ac^uiescmg in 
that assignment and serving under it he was constructively enlisted, 
and was a soldier in the service until he was subsequently honorably 
discharged. C. 4965, Sept. 12,1898. 

I A 3 b. A soldier deserted in December, 1863, was subsequently 
dishonorably discharged and confined for the desertion by sentence 
of a court-martial, but, pending the confinement, was pardoned by 
the President "on condition of returnmg and faithfully serving out 
his time ui his regiment." He complied with this condition and was 
honorably discharged. Held that his returnmg to his regiment and 
entering upon duty as a soldier pursuant to his agreement with the 
President, constituted an enlistment for the period agreed upon. P. 
65, 224, June, 1894. 

I A 3 c. A private in a volunteer company was in 1864 appointed 
captain in another regiment. He accepted and entered upon the 

an enlistment on his part, estopping him from denying his military capacity when 
sought to be made amenable as a deserter. The continued rendering of service which 
is accepted may constitute an enlistment. But enlistments in our Army are now 
almost invariably evidenced by a formal writing and engagement under oath. See 
In re McDonald, 1 Lowell, 100. An enlistment is the act of making a contract to 
serve the Government in a subordinate capacity either in the Army or Navy. 
Erichson v. Beach, 40 Conn., 283. An enlistment is a contract and effects a change 
of status. In re Grimley, 137 U. S., 151; Coe v. U. S., 44 Ct. Cls., 419; In re Morrissey, 
137 U. S., 157. The statutes employ the term "enlist" only with reference to con- 
tracts with persons who enter the Army as soldiers. Babbitt v. U. S., 16 Ct. Cls., 214. 
6 Op. Atty. Gen., 190, Oct. 25, 1853: "Enlistments into the Army, made under the 
inducements held out by the laws of the United States, are contracts; and although 
the Government be a party, still the contracts ought to be construed according to 
those well-established principles which regulate contracts generally." 



604 ENLISTMENT I A 4. 

office. Subsequently an order was issued purporting to revoke the 
appointment and directing his return to his original company as a 
private. He complied with the order. Held that while this order 
was in fact void, he, by complying with it, abandoned the office of 
captain, and, by performing services as a private which were accepted 
and paid for by the Government, constructively enlisted again. 
C. 2293, June, 1896. 

I A 4. There is no law or regulation affecting the validity of an 
enlistment made on Sunday.^ R. 33, 662, Dec, 1872; C. 2619, Sept., 
1896; June 20, 1906 and Oct. 19, 1908. 

I A 5. The engagement alike of officers and soldiers when entering 
the Army has always been held to recognize, and to be subject to, the 
right of the Government to change by law their pay and allowances 
in its discretion as the public interests may require. Held, therefore, 
that a contract of enlistment was not violated by the United States 
by the reduction by act of Congress, pending his enlistment, of the pay 
of a soldier from $16 to $13 per month.^ R. 34, U^, Sept., 1873. 

I A 6. There is no statute that authorizes even the President to 
accept into or retain in the military service of the United States an 
individual soldier on a condition that he shall be sent to this or that 
part of the country to serve. A practice of entering into such agree- 
ments would soon prove impracticable and inconsistent with public 
pohcy and the interests of the service. C. 6731, July, 1899. 

I A 7. Held that under the laws relating to the raising of a volun- 
teer army, recruits for the United States Volunteers are enlisted di- 
rectlv into the service of the United States.^ C, 4631, July 22, 1898. 

I A 8 a. Held that the date set forth in the oath is the date on which 
a soldier is enlisted within the meaning of the Articles of War.* C. 
10803, July 5, 1901; 16562, July 7, 1904. Held also that proof of the 
date of enlistment is not essential to proof of enlistment. C. 3947, 
Mar. 18, 1898. 

I A 8 b. Where application has been made for reenlistment inside 
of the limit of time but its acceptance has been delayed without fault 
on the applicant's part beyond the limit of time, held, that it is per- 
missible under the authority of the Army Regulations to have the 
final acceptance relate back to and take effect on the date of accept- 

1 The same is held in the English case of Wolton v. Gavin, 16 Q. B., 48. 

2 "The executive department has discretionary authority to discharge before the 
term of service has expired (fourth article of war), but has no power to vary the con- 
tract of enlistment." 4 Op. Atty. Gen., 538. (1847.) 

The Secretary of War can release a soldier from his contract of enlistment by a dis- 
charge, but has no power to suspend it even with the soldier's consent. 15 Op. Atty. 
Gen., 362. (1877.) 

3 Volunteer recruiting service. — The method of enlistment in the case of volunteers is 
regulated by sec. 5 of the act of Apr. 22, 1898 (30 Stat., 361), which confers au- 
thority upon the Secretary of War "to prescribe such rules and regulations, not incon- 
sistent with the terms of this act, as may in his judgment be necessary for the purpose 
of examining, organizing, and receiving into service the men called for." Under 
the authority thus conferred regulations were prepared by the Secretary of War and 
promulgated to the Army in a circular from the Adjutant General's office under date 
of June 3, 1898. Sec. 12 of the act of Mar. 2, 1899 (30 Stat. 977), authorized the 
recruitment of a force of 35,000 volunteers, "without restriction as to citizenship or 
educational qualifications." For orders regulating the enlistment and organization 
of this force see General Orders, No. 122 and 150, A. G. O., of 1899. 

* In re Grimley, 137 U. S., 147. 



EJNLISTMENT 1 A 8 C. 605 

ance of the Government's offer by the applicant in order that the 
soldier may be considered as having continuous service.^ C. 2317, 
May 22, 1896; 233, Aug. 25, 1894; 611, Nov. 10, 1894; 2123, Mar. 
12, 1896; 10833, July 26, 1901; 24837, Oct. 9, and Nov. 11, 1909; 
25905, Dec. 6, 1909, and Feb. 20, 1911; 27734, Jan. 19, 1911. 

I A 8 c. A discharged soldier, because of an operation performed 
on him for a disease contracted in the line of duty, failed to reenlist 
within the legal limit of time provided for continuous service. Held, 
that the record could not be antedated so as to show that he had 
been continuously in the service .2 C.8170, May 8, 1900; 3951, Mar. 
21, 1898; 3978, liar. 29, 1898; 19249, Feh. 24, 1906. 

I A 9 a. A fraudulent enlistment is an enlistment procured by 
means of a willful misrepresentation in regard to a qualification or 
disqualification for enlistment, or by an intentional concealment of a 
disqualification, which misrepresentation or concealment has had the 
effect of causing the enlistment of a man not qualified to be a soldier 
and who, but for such false representation or concealment, would 
have been rejected.^ P. 56, 219; 63, 153; C. 17919, Apr. 28, 1905; 
24912, May 10, 1909. 

I A 9 b. Before fraudulent enlistment was made a military offense 
by the act of July 27, 1892 (27 Stat. 278), it was held that persons 
fraudulently enlisting (except those not discharged under a former 
enlistment) could not be tried for the fraudulent enlistment as a 
military offense, for the reason that when the act was committed 
they were not in the ''land forces." Held, that the act of July 27, 
1892, made the receipt of pay and allowances a part of the offense.* 
To complete the offense, therefore, entry into the service by means 
of misrepresentation, and the receipt of pay and allowances, are 
necessary. C. 7668, Feh. 10, 1900; 9028, Sept. 26, 1900; 11998, 
Jan. 30, 1902; 12929, Aug. 7, 1902; 13686, Nov. 17, 1902; 16562, 
Jan. 7, 1904; 18547, Sept.^9, 1905. 

I A 9 c (1). An applicant for enlistmenf told a recruiting officer 
that he was 20 years of age, and was enlisted, without the consent 
of his parents. Held that although he was meligible, under sec- 
tion 1117, R. S., jQt as he had made no misrepresentation as to his 
age, his enlistment was, therefore, not a fraudulent one.^ C. 8455, 
June 23, 1900; 4244, June 2, 1898. 

1 Reversed. See C. 14124, Mar. 17. 190-3: also see Mms. decision of the comptroller 
published in Circular G3, Headquarters of the Army, A. G. O. series 1902; also see 
15 Op. Atty. Gen., 362. Coe v. U. S., 44 Ct. Cls., 419, Mar. 29, 1909. A soldier was 
discharged Apr. 22, 1899. He applied for reenlistment July 21, 1899, signed an 
application, and passed the physical examination. The recruiting officer was then 
called elsewhere on official business, and July 25, 1899, certified on the soldier's dis- 
charge certificate that the man was enlisted July 25, 1899, to date July 21, 1899. 
Decided that the soldier was reenlisted July 21, 1899. See par. 876 A. R., 1910 ed., 
as amended by G. 0. No. 60, W. D., series 1911 (Mav 8). 

2 See VI Comp. Dec, 754, Mar. 28, 1900. 

3 This definition was published in par. 6, Circ. 13, A. G. O., 1892. 

* See In re Kaufman, 41 Fed. Rep., 876. In the case (In re Carver, 103 Fed. 
Rep., 624) the court said: "It may well be doubted whether under the Constitution 
fraudulent enlistments can be made offenses punishable by courts-martial; but there 
can be no question that the receipt of pay or allowance after fraudulent enlistment 
may be made so ]mnishable." 

^'In re Bums, 87 Fed. Rep., 796. Sec. 1117, R. S., prohibits the enlistment of 
a minor into the Volunteer service without the written consent of his parents or 
guardian. 



606 ENLISTMENT 1 A 9 C (2). 

I A 9 c (2). All applicant for enlistment stated to a recruiting officer 
that he had been convicted of a felony, and was enlisted. Held, that 
his enlistment was in contravention of section 1118, R. S., but 
not void, and having been entered into without fraud could be termi- 
nated only by an honorable discharge, provided no cause for another 
kind of discharge had in the meantime arisen. C. 9490, Dec. 27 , 1900. 

I A 9 d. A deserter from the Navy of the United States enlisted 
in the Army by concealing the fact of such desertion. Held, that he 
committed the offense of fraudulent enlistment and might be brought 
to trial therefor. R. 43, 167, Jan., 1880; P. 59, 91, Apr., 1893. 

I A 9 e. A soldier on trial for desertion from the Army pleaded in 
bar of trial that as he was a deserter from the Marine Corps at the 
time of his enlistment, it was void. Held that the court properly 
overruled the plea. ^Qiile the enlistment in the Army was fraudu- 
lent, it was not void, but voidable at the option of the Government 
only, which might hold him to the existing obligations of either or 
both enlistments. Fraud gives only the defrauded party the option 
of disaffirming the contract, but until so disaffirmed it remains good.^ 
B. Boole 48, 203, Dec, 1883; P. 2, 466, Dec. 28, 1883. 

I A 9 e (1). An applicant by concealing the fact that he was a 
member of the National Guard was enlisted. Held that his enlist- 
ment was frauduient.2 C. 13943, Nov. 9, 1910. 

I A 9 f. A soldier was mustered uito the service and later dis- 
honorably discharged by sentence of a court-martial. He subse- 
quently reenlisted in another regiment and served therem until 
mustered out. Held, that if one who is physically and mentally 
capable of rendering service as a private soldier is employed as a 
soldier and renders that service, he is a soldier even though there 
may be a law forbidding his enlistment in positive terms, unless 
that law declares him wholly incapable of making a contract of 
enlistment (so that any such contract entered into with him would be 
absolutely void). The laV that merely provides that he shall not be 
enlisted would be violated by enlistmg hun, but that could not alter 
the fact that he had been enlisted and had become a soldier and had 
performed service. If, therefore, men are enlisted by a recruitmg 
officer, through his own or their own wUlful disregard of the provisions 
of the law, or through their fraud dr deception, or the recruiting 
officer's ignorance of the facts, the contract is simply voidable, and 
has the same force and effect as the enlistment of any person until 
duly voided by the Government. P. 48, 366, Aug., 1891; 55, 183, 
Aug., 1892; C. 4797, Aug. 15, 1898; 6398, May 11, 1899. 

I A 9 f (1). Held that the fraudulent enlistment of a soldier who 
had been discharged without honor was not void but that the Secre- 
tary of War may cause him to be tried for the fraudulent enlistment, 
or to be summarily discharged therefrom without honor, or to be 
restored to duty. C. 4077, Apr. 28, 1898. 

I A 9 f (2). Held that the fraudulent enlistment of a soldier who 
had been dishonorably discharged for desertion was not void. P. 48, 
366; C. 321, Sept. 12, 1894; 359, Sept. 19, 1894; 4^4, Oct. 15, 1894; 
1429, June 3, 1895; 1571, July 19, 1895; 1624, Aug. 6, 1895; 2115, 
Mar. 9, 1896; 2717, Oct. 30, 1896; 4711, July 30, 1898; 5592, Dec. 29, 
1898. 

1 Bigelow, Law of Fraud, 121. ^ ^jj. ^3^ ^ q q., 1903, and 62, W. D., 1908. 



ENLISTMENT I A 9 f (s). 607 

I A 9 f (3). Held that the fraudulent enUstment of an escaped 
general prisoner was not void, and in a particular case that his rec- 
ord after such enlistment warranted the remission of the unexecuted 
portion of his sentence, and the contmuation of his enlistment. C. 
9099, Oct. 10, 1900. 

I A 9 f (4). Held that the fraudulent enlistment of a discharged 
general prisoner was not void, and that the soldier may be tried for 
the offense, discharged without honor, or restored to duty. C. 5481, 
Dec. 9, 1898. 

I A 9 f (5). Held that sections, 1116-1118, R. S., which provide that 
deserters, convicted felons, insane and intoxicated persons and certain 
minors shall not be enlisted, etc., are directory only, and do not 
necessarily make void such enhstments, but render them voidable 
merely at the option of the Government.^ P. 4^, 82, July, 1890; 48, 
367, Aug., 1891; C. 9490, Dec. 27, 1900, and Oct. 3, 1911; 17807, Apr. 
10, 1905; 27507, Nov. 19, 1910; 27711, Jan. 17, 1911. 

I A 9 f (6). Held that the fraudulent enlistment of a minor with- 
out the consent of his parent or guardian is not void, but voidable; 
until avoided it is vaUd.^^ R. 49, 353 and 376, Oct., 1885; 50, 139, Mar., 

^ Sees. 1116-1118, R. S., forbid the enlistment of deserters, convicted felons, insane 
and intoxicated persons, persons over 35 years of age, minors under 16 years of age, and 
minors over 16 \vithout the written consent of their parents or guardians. The Supreme 
Court held (In re Grimley, 137 U. S., 147, 153) that the enlistment of a person over 
35 years of age was not void, but voidable at the option of the Government only. In 
delivering the opinion of the court, Mr. Justice Brewer, excepting insanity, idiocy, 
infancy, or other causes which disable a party from changing his status, remarked with 
reference to the disqualifications of overage, desertion, and conviction of felony: 
' ' These are matters which do not inhere in the substance of the contract, do not prevent 
the change of status, do not render the new relations assumed absolutely void. " 

The third article of war, however, makes the offense of knowingly enlisting such 
a man, punishable, upon conviction, by dismissal or such other punishment as a court- 
martial may direct. 

'^ In re Wall, 8 Fed. Rep., 85; McConologue's case, 107 Mass., 170; In re Drew, 25 
Law Rep., 538; In re Graham, 8 Jones (N. C), 416; Wilbur v. Grace, 12 Johns., 67; 
Ex parte Anderson, 16 Iowa, 598; Com. v. Gamble, 11 Sergt. & Rawle, 93; Tyler v. 
Pomeroy, 8 Allen, 480, 501. 

The enlistmeiit of a minor over 16 years of age without the written consent of the 
parent or guardian is not void but voidable only. In re Morrissey, 137 U. S., 157. 
It is not voidable at the instance of the minor (id.); but is voidable by the United 
States or by the parent or guardian. Id.; In re Wall., 8 Fed. Rep., 85; In re Davison, 
21 id., 618; In re Hearn, 32 id., 141; In re Cosenow, 37 id., 668; In re Dohrendorf, 40 
id., 148; In re Spencer, id., 149; In re Lawler, id., 233; In re Dowd, 90 id., 718; McCono- 
logue's case, 107 Mass., 170. As the enlistment of such a minor is not void but void- 
able onlj^, he is, until the enlistment is duly avoided, legally a soldier and can desert 
or commit any other military offence; and when held for trial or punishment therefor, 
the interests of the public in the administration of justice are paramount to the right 
of the parent or guardian, and requhe that the soldier shall abide the consequences 
of his offence before the right to his discharge is passed upon. In re Cosenow, 37 Fed. 
Rep., 668; Li re Kaufman, 41 id., 876; In re Dowd, 90 id., 718; McConologue's case, 
107 Mass., 170. See, also, General Orders, No. 127, A. G. O., 1900, and other author- 
ities cited therein. 

It is voidable at the instance of the parent or guardian. Com. v. Blake, 8 Phil., 523 
Turner v. Wright, 5 ibid., 296; Menges v. Camac, 1 Serg. and R., 87; Henderson v 
Wright, ibid., 299; Seavey v. Seymour, 3 Cliff., 439; In re Cosenow, 37 Fed. Rep., 668 
In re Hearn, 32 ibid., 141; In re Davison, 21 ibid., 618; U. S. v. Wagner, 24 ibid., 135 
In rt Dohrendorf, 40 Fed. Rep., 148; In re Spencer, ibid., 149; In re Lawler, ibid., 
233; In re Wall, 8 ibid., 85. 

In re Lawler, 40 Fed. Rep., 233, it was held that the enlistment of a minor under 
16 years of age would be void, with or without the consent of the parent; but this is 
not thought to be the correct view. The statute probably renders the enlistment 
voidable at the instance of the minor, as well as at the instance of the parent or guardian 
where the enlistment was without his consent, but if the minor has capacity to enter 



608 ENLISTMENT I A 9 f (7) (a). 

1886; C. 2870, Jan., 1897; 8982, Sept. 19, 1900; 12968, July 15, 1902; 
16192, Oct. 17, 1907. 

I A 9 f (7) (a). A married man enlisted as a single nian.^ Held 
that such an enlistment is not prohibited by statute and is therefore 
not intrinsically illegal. Held further that as the only provision on 
the subject is a regulation, which forbids such enlistments, such regu- 
lation is really no more than a direction to the recruiting officer.^ 
R. 32, 72, Oct., 1871; 38, 616, June, 1877; 39, 467, Feb., 1878. 

I A9f (7) (&). A soldier who had twice been dishonorably discharged, 
enlisted fraudulently and served his term honestly and faithfully. 
He reenlisted again and was tried and convicted upon his plea of 
guilty of fraudulently enlisting by falsely representing that he had 
never been discharged from the service of the United States by a sen- 
tence of a court-martial and was sentenced to confinement and for- 
feiture. Held that the fact that his service during his last preceding 
term of enlistment had been honest and faithful removed his case 
from the operation of the act of August 1, 1894 (28 Stat. 216), but 
did not protect him from the effect of the fraudulent enlistment, viz, 
his intentional concealment of a disqualification for reenlistment, 
which, if known, would have prevented his reenlistment. C. 6290, 
Apr. 20, 1899; 6406, May 16, 1899; 7542, Jan. 13, 1900; 11677, Dec. 
3, 1901; 16119, Apr,. 2, 1904. ^ 

I A 9 f (8). An enlistment in violation of article 50 is not void but 
voidable at the option of the United vStates only. Until so avoided 
service under it is valid service. F. 43, 4^, Sept., 1890; 53, 254, Apr., 
1892; a 321 , 355 and 35 9, Sept., 1894; 494, Oct., 1894; 538, Oct. 22, 1894; 
902, Feb., 1895; 1429, June, 1895; 1571, July, 1895; 1624, Aug., 1895; 
2022, Jan., 1896; 2115, Mar., 1896; 2269, May, 1896; 27 17, Oct. 30, 
1896; 18492, Aug. 31, 1905. On a trial for an offense committed 
during such enlistment, a plea by the accused, in bar of trial, that 
tliis enlistment being fraudulent on his part, is void, should not be 
sustained. P. 39, 257, Mar., 1890; C. 23644, Mar. 2, 1909. 

I A 9 g (1). A soldier who had been dishonorably discharged for 
other offenses than desertion fraudulently enlisted. Held that he 
may be allowed to serve out such enlistment or he may be discharged 
therefrom without honor, or brought to trial for the qll'ense of fraudu- 
lent enlistment at the option of the Government. C. 4797, Aug., 
1898; 5481, Dec, 1898; 15533, Nov. 24, 1903; 16192, Apr. 22, 1904; 

into the status of a soldier, and while in that status commits a military offence, he 
should abide the consequences of the offence before being discharged. 

See also. Ex parte Hubbard (182 Fed. Rep., 76) where the decision of the court, quot- 
ing the syllabus, was as follows: 

"A minor enlisted in the Army when under the age of 16, who has continued to 
serve and receive pay after passing that age, acquires the status of a soldier like one 
who was enlisted when over 16 without the consent of his parents, and a court-martial 
has jurisdiction to try and sentence him to punishment for desertion, from which 
sentence he can not be discharged on habeas corpus on petition of himself or hia 
parents. " 

' The enlistment of married men is discouraged by the Army Regulations (869 
A. R.), ed. 1910. 

* "If a man at the time of his enlistment denies that he is a married man and enlists 
as a single man, the fact that he has a wife and child does not entitle him to be^'dis- 
char^ed on habeas corpus, although it is provided in the Army Regulations that no 
married man shall be enlisted without special authoritv from the Adjutant General's 
Office." Ex parte Schmeid, 1 Dillon, 587 (1871— No. 12461, Federal Cases). See 
similar ruling in Ferren's case, 3 Benedict, 442 (1869 — No. 4746, Federal Cases). 



ENLISTMENT I A 9 g (2). 609 

19520, Apr. 14, 1906; 2339^, June 6, 1908. Held further that when 
a man, since his fraudulent enlistment, has had a good character and 
a record for good service, it is the policy of the War Department to 
retain the man and enjoy the advantage of his service. C. 27507, 
Nov. 19, 1910. 

I A 9 g (2). A minor who enlists without the consent of his parent 
or guardian and procures his enlistment by intentionally concealing 
the fact that he is a minor, receiving pay and allowances thereunder, 
may be retained in the service, discharged without honor, held for 
trial for fraudulent enlistment^ honorably discharged, or restored to 
duty without trial, in the discretion of the Secretary of War. C. 
42U, June, 1898. 

I A 9 g (3). A soldier fraudulently enlisted without a discharge from 
a prior enlistment. Held that he may be brought to trial for desertion 
and fraudulent enlistment, or he may be restored to duty without 
trial and held to serve either the fraudulent enlistment or the one from 
which he deserted, or both, at the option of the Government. P. 1^9, 
U2, Oct., 1891; C. 321, Sept. 12, 1894; 359, Sept., 1894; 2115, Mar., 
1896;, 4663, July 23, 1898;. 47 11, Aug., 1898; 5465, Dec. 8, 1898; 
5513, Dec. 20, 1898; 5592, Jan., 1899; 13322, Sept. 17, 1902; 20314, 
Mar. 19, 1908; 25906, Dec. 18, 1909. 

I A 9 g (4). A soldier who was not a deserter fraudulently enlisted 
by concealing the fact that he had previously been discharged on a 
certificate of disability. Held that the case could be disposed of by 
referrmg it to a court-martial or, if that course be impracticable, he 
could be discharged without honor, or service could be accepted under 
the fraudulent enlistment, m which case if the enlistment be faith- 
fully served the soldier would become entitled to an honorable dis- 
charge. C. 27409, Oct. 28, 1910. 

I A 9 h. In a case where a soldier while absent in desertion fraudu- 
lently enlisted, lield, m accordance with the view held for many years 
by the Department, that if he was not to be tried for the desertion and 
fraudulent enlistment he should be discharged without honor from 
the former enlistment from which he deserted, and be held to the 
second or fraudulent enlistment. C. 23644, July 12, 1909; 20314, 
Aug. 31, 1906, Feb. 17, July 12, and Sept. 13, 1909. 

I A 9 i. A soldier enlisted fraudulently, was tried but not sentenced 
to dishonorable discharge. Held that the Government could not 
properl}?- also summarily discharge him. Wliile it might have resorted 
to either course, it would scarcely be just to subject the offender to 
both. P. 60, 174, June, 1893; C. 1512, July 2, 1895; 18492, Aug. 31, 
1905; 22983, Mar. 26, 1908. 

I A 9 k. The enactment of the law making fraudulent enlistment a 
militarv^ offense (sec. 2, act of July 27, 1892, 27 Stat., 278) did not take 
it out of the law of contracts. Fraudulent enlistment has a two-fold 
character — criminal and civil. In the latter character it is a fraudu- 
lent contract which may be avoided, and when a contract is avoided 
for fraud, the party committing the fraud has no right to the benefits 
of the contract. Held that it is legal to summarily discharge a fraudu- 
lently enlisted soldier with this loss of rights under the contract of 
enlistment, if it should be deemed best to so dispose of him instead of 
bringing hun to trial. P. 58, 318, Mar., 1893. 

I A 9 1. There is a distinction between a fraudulent contract 
of enlistment and the character of service thereunder. While the 

93673°— 17 39 



610 ENLISTMENT I A 9 m. 

former is voidable at the option of the Government, the service is 
legal service and, if the contract be not avoided on account of the 
fraud, the soldier would be entitled to such a discharge upon comple- 
tion of his term as his services may merit. Held that if the discharge 
is an honorable one, it should in general be viewed as estabhshing 
the fact that the service referred to therein was honest and faithful. 
C. S55, Sept. 18, 1894; 2022, Jan. 27, 1896; 2269, May 6, 1896; 
64-06, May, 1899. 

I A 9 m. Held that time actually served under a fraudulent enlist- 
ment should be counted in computing the 30 years necessary to 
entitle the soldier to retirement under the provisions of the act of 
September 30, 1890 (26 Stat. 504). C. 355, Sept., 1894; 2022, Jan., 
1896; 7108, Oct., 1899. 

I A 9 n. Held that the award of a certificate of merit to a soldier 
who was serving under a fraudulent enlistment was lawful, and that 
upon being restored to duty without trial he was entitled to the 
additional pay which is authorized by the statutes, C. 16644, July 
27, 1904. 

I A 9 0. Held that service under a fraudulent enlistment counts 
toward continuous service, unless the enlistment is voided as fraudu- 
lent by the Government.^ C. 2269, May 6, 1896; 16644, July 27, 
1904; 22333, Nov. 9, 1907.^ 

I A 10. Held, that section 1162, R. S., which provides for enlist- 
ment for service in the Ordnance Corps, does not prevent the Secretary 
of War from designating a class of persons, such as married men, from 
whom enJistment shall not be made. C. 1655, Aug. 13, 1905. 

I A 11. Held that there is no legal objection to giving general 
authority to the Chief Signal Officer of the Army to enlist married 
men and men who have minor children for service in the Volunteer 
Signal Corps. C. 4208, May 31, 1898. 

I A 12. Upon request for an opinion as to whether colored men 
could be enlisted for the Coast Artillery, held that in view of the fact 
that Congress had designated certain organizations in the Army to 
be composed entirely of colored men and that as the Coast Artillery 
did not include such organizations, the enlistment of colored men 
for duty in the Coast Artillery is not authorized.^ C. 17030, Apr. 
30, 1907. 

I B 1 a. Upon request for information as to whether the age 
limit is fixed by regulations, held that the act of March 2, 1899 (30 
Stat. 977), fixes the age limits as 18 to 35, and that it is beyond the 
power of the executive to waive the limit in a particular case.' 
a 4306, Feh. 8, 1907.^ 

I B 1 b. A minor with the signed consent of his guardian applied 
for enlistment. Held, that the written consent of the legally appomted 
guardian of a minor is sufficient for his enlistment unless there is 
some restriction on the guardian's authority by the court appointing 
him. C. 10040, Aug. 2, 1909; 12968, Aug. 12 and 28, 1908. 

IB 1 b (1). An alien minor, with the consent of his parent, who 
had taken out preliminary naturalization papers, requested enlist- 
ment. Held, that the enlistment of the mmor is lawful and within 

1 XII Comp. Dec, 326. 

2 17 Op. Atty. Gen. 47, Feb. 24, 1881. The enlistment of white men in colored 
regiments is prohibited by implication by sees. 1104 and 1108, R. S. 

3 See sees. 1116, 1117, and 1118, R. S. " 



ENLISTMENT I B 1 b (2). ' 611 

the operation of section 4 of the act of March 2. 1899 (30 Stat., 978), 
which fixes the age of enhstment as from 18 to 35. C. 6726, May 
3, 1907. 

IB 1 b (2). An ahen minor with the consent of his guardian 
requested enlistment. He was rejected at the depot under the mis- 
understanding that an ahen minor whose father is living is not com- 
petent to declare his intention to become a citizen of the United 
States without the consent of his parents. Held that as section 4 of 
the act of June 29, 1906 (34 Stat., 596), authorizes an alien minor 
independently of his family to make a declaration of his intention to 
become a citizen at any time after he reaches the age of 18, the appli- 
cant could declare his intention to become a citizen of the United 
States, without the consent of his father. 0. IOO4O, Nov. 28 1910; 
12968, Sept. 2, 1908. 

I B 1 b (3) . An Indian minor, whose father was dead, was enlisted 
with the consent of his uncle who had not been appointed his guardian. 
Held, that neither the uncle nor the Indian agent was guardian, and 
that the enlistment was in violation of the regulation.^ C. 184, Aug., 
1894. 

IB 1 b (4). An apphcant for enlistment who was a minor pre- 
sented the written consent of his mother and stated that she had been 
separated from the father for a number of years. Held that the 
father is the natural guardian of a minor child, if living, or unless a 
total divorce has been decreed by which the custody of the children 
is granted to the mother. Mere separation, unless in the operation of 
a formal agreement, does not affect the custody of the minor children 
or vest guardianship in the mother. C. IOO4O, July 11, 1910. 

I B 1 b (5). A minor in Texas without his parents' or guardian's 
consent applied for enlistment and presented evidence to show that 
his disabilities as a minor had been removed under articles 3499 to 
3502, Civil Laws of Texas. He was enlisted. Held, that liis enlist- 
ment was legal. C. 22418, Nov. SO, 1907. 

I B 2 a. The act of August 1, 1894 (28 Stat., 216), fixes the term 
of enlistment as three years. Held, that this applies to all enhstments 
for the Army, and no exception can be made in the case of an Indian. 
C. 249, Aug., 1894; I8486, Aug. 26, 1905. 

I B 2 b. The act of May 11, 1908 (35 Stat., 109), provides "that 
an enlistment shall not be regarded as complete until the soldier shall 
have made good any time lost during an enlistment period hj unau- 
thorized absences exceeding one day." Held that under this law a 
soldier absent in the hands of civil authorities is absent without leave 
unless he shall be acquitted. G. 17518, Oct. 2, 1911. 

I B 2 b (1). After a soldier had served three years he was discharged 
per expiration of term of enlistment. He could have been held to 
make good time lost, but this was not done, due to neglect on the 
part of the company clerk and the first sergeant. Held that the dis- 
charge was for the convenience of the Government and that the sol- 
dier was entitled to have the enlistment recorded as a complete 
enlistment under the provisions of the act of May 11, 1908 (35 Stat. 
1 09). C. 18438, Sept. 19, 1911. 

I B 2 c. An enlisted man of the Signal Corps was employed at a 
telegraph station in Alaska, which was inaccessible at certain seasons 



^ Sec. 1117, B. S., also forbids sucb enlistment. 



612 ENLISTMENT I B 2 d. 

of the year. Held that where it is beheved to be to the public inter- 
est, such enlisted man may be discharged before the end of his enlist- 
ment and reenlisted ; or, in an emergency, and with a view to prevent 
the interruption of the telegraph lines, he may be continued m serv- 
ice, with his consent,^ under his enlistment, until he can reach a place 
where he can be reenlisted.^ C. 19281, Mar. 2, 1906; 16900, Sept. 16, 
1904, Aug. 27 and Oct. 23, 1907; 17700, Mar. 25, 1905. _ 

I B 2 d. The enlistment of certain volunteer soldiers in 1862 was 
"for three years or during the war." Held that this meant three years 
from the date of muster, if the war should last that long, and if it 
should not, then until it should end; that the reference to the dura- 
tion of the war was a restriction and not an extension of the term.^ 
R. 42, 524, Mar., 1880; C. 6312, Apr., 1899. 

I B 2 e. Under the act of April 22, 1898 (30 Stat. 361), it was pro- 
vided that "all enlistments for the Volunteer Army shall be for the 
term of two years, unless sooner terminated * * *." Also that 
"all officers and men composing said Army shall be discharged from 
the service of the United States when the purposes for which they 
were called into service have been accomplished or on the conclusion 
of hostilities." Held that this last provision is directed to the Presi- 
dent and makes it his duty to disband the Volunteer Army when the 
occurrences named take place, but that no right is therein given to 
an individual to claim a discharge before the end of the two years for 
which he enlisted.* O. 4822, Aug. 20, 1898; 4891, Sept. 1, 1898; 
4897, Sept. 3, 1898; 6312, Apr. 24, 1899. 

I B 2 f. Soldiers whose terms of enlistment expired before they 
reached San Francisco, after service in the Philippine Islands, were 
held in service for discharge in the United States. Held that such 
retention was proper and based upon an exigency of the service,^ 
viz, the necessity for retaining enlisted men under military control 
throughout the homeward voyage. C. 13517, Aug. 13, 1903; 16900, 
Sept. 16, 1904; 17700, Mar. 25, 1905.^ 

I B 2 g. In 1904 a battalion of Philippine Scouts were in the United 
States participating in the Louisiana Purchase Exposition at St. 
Louis. Their terms of enlistment expired September 30 and it was 
desired to retain them in the service for the convenience of the Govern- 
ment for about two months, viz, until about November 30, 1904. 
Held that there was no authority of law for retaining them in the 
service beyond the term of their enlistment. C. 16900, Sept. 16, 1904- 

I B 2 h. Where a soldier was sentenced to a forfeiture of $10 per 
month of his pay for 18 months, and his term of enlistment expired 
before the end of that time, Jield that he could not legally be retained 
in the service beyond such term for the purpose of the full execution 
of the forfeiture. R. 16, 94, May, 1865. 

' 15 Op. Atty. Gen., 152, Sept. 1, 1876. "A soldier's engagement expires with the 
last day of the term, unless before the term is up he consents to an extension." 

2 II Comp. Dec, 94, Aug. 31, 1895. An enlisted man remains in the service until 
receipt of his discharge or until such action is taken as will render him legally charge- 
able with notice thereof, notwithstanding the expiration of his term of enlistment 
during his absence on a furlough granted at his own request. 

^ Breitenbach v. Bush, 44 Pa. St., 317. And see Clark v. Martin, 3 Grant's Cases, 
393; do., 5 Phila., 251. 

MOp. Atty. Gen., 538. 

^ See Dinsman v. Wilkes (53 U. S., 389.) 



EJiTLTSTMENT 16 2 1, 613 

I B 2 i. Held that a soldier too sick to receive notice of discharge 
at expiration of term of enlistment is held in the sei^vice awaiting 
service of notice of discharge, and his status is one of duty. C. 
26240, Feb. 19, 19J0. 

I B 3 a. A soldier was honorably discharged after 30 years' service 
and upon application for reenlistment it appeared that he had been 
convicted or a felony, served his sentence, and had then been granted 
a full and unconditional pardon by the President. Held that the 

Eardon released him from all his disabilities imposed by the offense, 
ut did not restore his eligibilit}^ for enlistment, as the fact remained 
that he was a convicted felon and was ineligible for enlistment under 
the provisions of section 1118, R. S. Also held that the conviction 
can not be imputed to him to prevent the assertion of his legal rights 
and that the privilege of enlisting in the Army is not a legal right.* 
P. 36, 262, Nov., 1889; C. 2769, Nov. 30, 1896; 4219, June 1, 1898; 
4513, July 12, 1898; 6729, July 15, 1899; 8293, June 4, 1900; IIO48, 
Sept. 10, 1901. 

I B 3 b. Section 1229, R. S., provides that an officer shall be dropped 
from the rolls for desertion. Held that an officer so dropped is 
ineligible for reappointment as an officer and, under section 1118, 
R. S., for enlistment or muster into the military service as a soldier. 
a 4513, July 12, 1898. 

1 B 3 c. Paragraph 859, Army Regulations of 1908, prohibits the 
enlistment of a man who has been imprisoned under sentence of a 
court in a reformatory, jail, or penitentiary. Field in the case of an 
applicant for enlistment who had committed no criminal offense, but 
who had been sent at his own request to a workhouse in the city of 
New York, that the regulation in question did not prohibit his enlistr- 
ment. C. 9490, Apr. 2, 1910. Similarly held in the case of a boy 
who was convicted of maliciously destroying certain personal prop- 
erty and committed by the court to the State Industrial School for 
Boys at Golden, Colo. C. 9490, Dec. 9, 1911, and Jan. 10, 1912. 

i C 1 a. A foreigner requests enlistment in the Ai'my. Held that 
unless he has become a citizen of the United States or made legal 
declaration of his intention to do so his enlistment is prohibited in 
time of peace - by section 2 of the act of August 1, 1894 (28 Stat. 216). 
C. 168, Aug. 13, 1894; 8O4, Dec. 26, 1894; 5148, Oct. 21, 1898; 12968, 
Nov. 12, 1908, and Oct. 1, 1910. Service by an American in a foreign 
army does not renounce his United States citizenship. 0. 14609, 
May 5, 1903, and Jan. 24, 1910. 

I C 1 b. Article 14 of the amendments to the Constitution of the 
United States deffiies the term ''citizens." Held that native-boru 
minors are citizens of the United States under this definition and may 
be enlisted under the act of August 1, 1894 (28 Stat. 216). C. 181, 
Aug. 16, 1894; 8O4, Dec. 26, 1894- Also Jield that persons born in 
the United States of alien parents who were not enjoying the privi- 
lege of exterritoriality and who have not left the jurisdiction of the 
United States are, after becoming of age, citizens and capable of 
enlisting. C. 20540, Jan. 11, 1911. 

' See sec. 1116-1118, R. S., which forbid the enlistment of deserters, convicted 
felons, insane and intoxicated persons, persons over 35 years of age, minors under 16 
years of age, and minors over 16 without the written consent of their parents or guard- 
ians. 

2 3 Op. Atty. Gen., 671. 



614 ENLISTMENT I C 1 C. 

IC 1 c. The act of August 1, 1894 (28 Stat. 216), is limited to 
"time of peace." Held, that the eiiHstment of four musicians for- 
merly in the Spanish Army in Porto Rico, could, the war with Spain 
not having terminated, legally be authorized. C. 5148, Oct., 1898; 
6726, July 12, 1899. 

I CI c (1). The act of August 1, 1894 (28 Stat. 216) provides that 
with the exception of Indians, only citizens, or those who have made 
legal declaration of their intention to become such, shall be enlisted 
for first enlistment in the Army. IJeld, that aliens may enlist in the 
Volunteer Army now being raised (July 12, 1899), also that alien 
children of alien parents who reach their majority after their parents 
have become naturalized are citizens of the United States, but that if 
they reach their majority before their parents are naturalized they 
are not citizens of the United States. C. 168, Aug. 13, 1894; 5550, 
Dec. 20, 1898; 6726, July 12, 1899 

I C 1 d. The act of August 1, 1894 (28 Stat. 216), limits eligibility 
for enlistment in time of peace (with the exception of Indians) to 
citizens of the United States or to those who have made legal declara- 
tion of intention to become citizens. Held, that this does not pro- 
hibit the enlistment of an alien minor with the consent of his parents 
in time of war. C. 5550, Dec. 20, 1898. 

I C 1 8 (1). The treaty with Spain entered into on the 11th of 
April, 1899, vested in the United States sovereignty over the island of 
Porto Rico, but it remains for Congress to determine what relations 
shall be best suited to the conditions of these inhabitants and the 
welfare of the United States. Held, that pending such action there 
could be no legal objection to an individual Porto Rican becoming a 
naturalized citizen of the United States by complying with the 
requirements of law, and that if such Porto Rican makes legal declara- 
tion of his intention to become a citizen, he will thereby acquire 
eligibility for enlistment in the Army under the act of August 1, 1894 
(28 Stat., 216). C. 11287, Sept. 25,^ 1901; 9928, Mar. 1, 1901. 

I C 1 f. Two natives of the Philippine Islands enlisted (Nov., 
1903), as musicians in the band of the Twenty-ninth Infantry and 
another native enlisted (Aug., 1902), in the band of the Ninth Cavalry, 
under telegrapliic authority from the Adjutant General to the Com- 
manding General of the Philippine Islands, dated March 17, 1900. 
Held, that the enlistment in time of peace of these Filipinos under 
that authority given in time of war was unlawful and that they should 
be discharged. C. 15893, Feh. 11, 1904; 16096, Mar. 22, 1904. 

I C 1 g. An alien in Cuba in 1902 desired to enlist in the Army and 
requested information as to the proper official before whom he could 
declare his intention to become a citizen of the United States. Held 
that naturalization can only be obtained in accordance with the stat- 
utes of Congress on the subject and that those statutes give no juris- 
diction in the matter to any official in Cuba and that therefore a decla- 
ration before any official in Cuba would not be a "legal declaration" 
within the meaning of the statute. C. 12973, July 17, 1902. 

I D 1. The term " reenlistment " is sometimes used in the narrow 
sense of an enlistment within one month after discharge under sections 
1282 and 1284, R. S.; but these sections simply prescribe increased 
pay in case of reenlistment within one month. ^ They do not prevent 

1 The act of Aug. 1, 1894 (28 Stat., 216), extends this period to thi-ee months. 



ENLISTMENT I D 2 a. 615 

a reenlistment after the expiration of the month. Section 1116, R. 
S., is based upon the law of March 16, 1802 (2 Stat. 135), in which 
there is no such limitation as to time. Held that reenlistment under 
this statute means a reentry into the service and it is prescribed that 
as to such reentry the limitation as to age shall not apply. R. 57, 41 , 
Oct., 1888. 

I D 2 a. The act of February 27, 1893 (27 Stat., 486), (now obso- 
lete) fixed a certain length of service as one of the essentials for reen- 
listment of privates in the army. Held that under this act previous 
naval service can not be counted to make up the length of service 
required to make a private eligible for reenlistment.^ P. 62, 90, 
Oct. 17, 1893. 

I D 2 b. A man more than 35 years of age with previous service in 
the Marine Corps, enlisted in the Army. Held that his Marine Corps 
service was not service as a soldier in the Army, that his enhstment 
was not a reenlistment, and that it was subject to the age limit pro- 
vided for first enlistments in the Army.^ C. 3758, Dec. 31, 1897; 
467, Oct. 10, 1894; 599, Nov. 5, 1894; 1S39, May 7, 189S; 18391, 
Aug. 7, 1905; 2530, Aug. 15, 1896. 

I D 2 c. The act of March 2, 1899 (30 Stat. 978), provided "that 
the limits of age for original enlistments in the Army shall be 18 and 
35 years." Held that an applicant over 35 years of age, who had 
served as an officer of volunteers only, could not enlist under the 
statute, as his previous commissioned service would not count as 
prior service as an enlisted man. C. 6844^ -4w$r., 1899. 

I D 3 a. A soldier had been sentenced to reduction and confine- 
ment on conviction of desertion; his sentence had been executed and 
he had thereupon returned to duty and served for a considerable 
further period in a status of honor. Held, that the fact that the 
soldier may have been tried and punished by court-martial did not 
'per se render his service unfaithful, and each case should be decided 
on its own merits. Held, further, that where it is showai that a soldier 
has served to the end of his enlistment it is assumed that he has 
served faithfully, unless the contrary has been determined in the 
manner provided by law. P. 36, 184, Oct. 31 , 1889; 48, 219. July I4, 
1891; C. 3036, Mkr. 31, 1897. 

I D 3 a (1). Held, that the remark ''service not honest and faith- 
ful" will not be noted on a soldier's discharge or final statement 
unless the remark expresses the approved finding of a board of 
officers. C. 3756, Jan. 8, 1898. 

I D 3 b. The act of June 16, 1890 (26 Stat. 157), provides that 
no soldier who has deserted at any time during the term of any enlist- 
ment shall be deemed to have served such term honestly and faith- 
fully. Held that this provision is limited in its application to the 
act of June 16, 1890, and does not operate necessarily to render service 
' ' not honest and faithful ' ' for purposes of reenlistment in cases of deser- 
tion. C. 2004, Jan. 22, 1896; 2121, Mar., 1896; 3530, Sept., 1897; 
3794, June, 1898. 

1 20 Op. Atty. Gen., 684. 

2(31 Ct. Cls., 196) Jno. Walton v. The United States. A soldier honorably dis- 
charged from the Army who enlists iu the Marine Corps within one month is entitled 
to the same additional pay that ha would be entitled to if his enlistment had been in 
the Army. 



616 ENLISTMENT I D fi C (l). 

I D 3 c (1). A soldier was enlisted and immediately arrested and 
confined on suspicion of being a deserter. Later he was released 
from confinement and sent away from the Army by order of the com- 
manding general, Department of the East. He had no serivce with 
troops. Upon request for his status it was lield that his service con- 
stituted an enlistment and was honest and faithful; that in view of 
the fact that he was not a deserter and enlisted in good faith and that 
during the time he was in the service he did the only thing it was possi- 
ble for him to do in the position in which he was placed, he committed 
no offense whatever after he became a soldier and was not confined 
by reason of his own fault. His service was honest and faithful not- 
withstanding the whole time was spent in confinement. C. 1916, 
Dec. 28, 1895. 

I D 3 c (2). A soldier who had been dishonorably discharged reen- 
listed fraudulently in the Volunteer Army and at the expiration of his 
term of enlistment was given an honorable discharge, with character 
"excellent" and service '^ honest and faithful." He then reenlisted 
in the Regular Army, was tried and convicted of fraudulent enlistment. 
Held, that the enlistment in the Volunteer Army should have been 
considered his "last preceding term of enlistment" within the mean- 
ing of section 2 of the act of August 1, 1894 (28 Stat., 216). C. 5840, 
Mar. 7, 1899; 1883, Fel). 23, 1899; 6203, April 8, 1899. 

I D 3 c (3) . A soldier was convicted by the civil courts of assault 
with intent to rob and commit murder, and was sentenced to five 
years' imprisonment. Upon the representation of his company 
commander, and others, he was pardoned by the governor of the 
State, and after having been discharged was returned to duty for the 
purpose of completing his enlistment. After the expiration of his 
term of enlistment he was held in the service pending a decision as to 
the character of his services. Held that there was no legal objection 
to discharging him on account of the expiration of his term of enlist- 
ment and to reenlisting him, on the ground that the facts would justify 
a decision that, notwithstanding his absence was occasioned by his 
own misconduct, his services, taken altogether, were honest and faithful 
within the meaning of the act of August 1, 1894 (28 Stat. 216). 0. 
9648, Jan. 17,1901. 

I D 3 c (4) . A first sergeant was convicted of assault with intent 
to kill and sentenced to be reduced to the ranks and confined at 
hard labor for 18 months. This soldier had completed 25 years' 
service, and the court gave, as its reason for leniency, ''the long and 
faithful service of the accused, and the previous mental strain under 
which he was laboring as shown by the evidence." He applied for 
reenlistment, and under the provisions of paragraph 148, Army Regu- 
lations of 1895, a board of officers was convened and came to the 
conclusion that although, under a strict interpretation of the regula- 
tions, this soldier's services had not been honest and faithful, his 
offense should not debar him from reenlistment.^ Held that from the 
strictest point of view a soldier's services are no longer honest and 
faithful after he has committed any offense no matter how trivial, 
and that regarding his services from that point of view we would have 
to debar from reenlistment any soldier who has been confined even for 

' Army Regulations now provide that a soldier's service shall not be characterized 
as not honest and faithful except upon the approved finding of a board of officers. 



ENLISTMENT I D 3 C (5). 617 

a day in the guardhouse as well as a soldier who has been confined 
for a year. Held, also, that such an interpretation would be absurd 
and has not been attempted; and that it is not practicable to draw 
a line between services honest and faithful and those not honest and 
faithful for all cases, since "it is a matter that must necessaril}^ be 
left indefinite, each case hinging on its own merits." C. 2158, Mar. 
25, 1896; 15119, June 22, 1903; 2434O, Jan. 18, 1909. 

I D 3 c (5) . A soldier was dishonorably discharged with confinement 
in a penitentiary by sentence of a court-martial, and pending the con- 
finement, the unexecuted portion was remitted. Held, that he was 
not eligible for enlistment, liis service during his last term not having 
been honest and faithful; and that the remission did not make him 
ehgible. C. 1072, Feb., 1895; 2496, Aug. 4, 1896; 5339, Nov. 17, 1898; 
5675, Apr. 13, 1899; 6713, May 7, 1900. 

I D 3c (6). Under its constitutional power to raise and support 
armies, Congress can designate the classes of persons from whom they 
are to be raised. Tliis is done by the act of August 1, 1894 (28 Stat. 
216), in which it is prescribed, amongst other things, that no soldier 
shall be again enlisted in the Army whose service during his last 
preceding term of enlistment has not been honest and faithful. Held, 
that a pardon and restoration to citizenship ^ will not bring a soldier 
who has been dishonorably discharged for desertion within the class of 
persons eligible for enlistment, as eligibility for enhstment is not a 
right of citizensliip. The fact that the man was a deserter can not be 
obHterated by pardon and such a man would, if pardoned, still be of 
that class from whom Congress has said that enlistments shall not be 
made.2 C. 1765, Oct. 4, 1895; 1883, Feb. 25, 1899; 3125, Apr. and 
June, 1897; 4513, July 12, 1898; 4645, July, 1898; 5280, Nov. 11, 1898; 
6729, July I4, 1899: 10994, Aug. 7, 1901; 11028, Aug. I4, 1901; 15288, 
Sept. 26, 1903; 16323, May 11, 1904; 16151, Aug. 18, 1904; 17661, 
Apr. 17, 1908; 26007, Jan. 3, 1910, Nov. 28 and 29, 1911, and Bee. 
11,1911. 

I D 3 c (7). In case of a deserter who was restored to duty without 
trial, held, that his pardon does not change the character of his service 
previous to restoration,^ under the act of August 1, 1894 (28 Stat. 
216). C. 3794, Jan. 18, 1898. 

I D 3 c (8). A soldier was dishonorably discharged for other rea- 
sons than desertion. Held, that his pardon would not operate to 
make him eligible for reenlistment, as his last precedmg term of en- 
listment had not been honest and faithful withm the meaning of the 
act of August 1, 1894 (28 Stat., 216).^ C. 2769, Nov. 28, 1896; 11028, 
Oct. 2, 1901; 10994, Nov. 27 and Dec. 2, 1901. 

1 D 3 c (9). A soldier was dishonorably discharged for desertion 
and sentenced to two years' confinement. Upon his applymg for 
restoration to duty, held, that the discharge had been executed and 
that the remission of the unexecuted portion of his sentence did not 

^ The loss of citizenship under sees. 1996 and 1998 R. S. follows only on conviction 
of desertion. (Kurtz v. Moffitt, 115 U. S., 501.) 

2 See 22 Op. Atty. Gen., 36. 

2 See 22 Op. Atty. Gen., 36, where it is held that while the President's pardon 
restores a criminal to his legal rights and fully relieves him of the disabilities legally 
attaching to his conviction, it does not destroy the existing fact that his service was 
not honest and faithful. 



618 ENLISTMENT I D 3 C (lO). 

render him eligible for reenlistment, as his last term of service had not 
been honest and faithful. G. 4668, July 25, 1898; 1097, Mar. 5, 1895; 
U66, June 25, 1898; 4832, Aug. 23, 1898. 

I D 3 c (10). A soldier having been found 'guilty by a court-martial 
of having committed other offenses than desertion, mcluding a threat 
against the life of the surgeon, was sentenced to dishonorable discharge, 
forfeiture of pay, and confinement at hard labor for three years. He 
later was released upon the remission of the unexecuted portion of his 
sentence. Upon request for reenlistment, held that his service under 
the last preceding enlistment had not been honest and faithful under 
the act of August 1, 1894 (28 Stat. 216). C. 3170, July 20, 1897; 
3722, Dec. 11, 1897; 47^8, Aug. 6, 1898; 4783, Aug. 21, 1898; 5339, 
Nov. 17, 1898; 6643, June 7, 1899. 

I D 3c (11). A dishonorably discharged soldier applied for reen- 
listment. Held, that he was ineligible, as his service during the last 
preceding term of enlistment was not honest and faithful under the 
act of August 1, 1894 (28 Stat. 216).^ C. 1588, July 25, 1895; 5492, 
Dec. 12, 1898; 5977, Mar. 4, 1899; 7233, Oct. 30, 1899; 7644, Feb. 5, 
1900; 8701, Aug. 1, 1900; 11570, Nov. 11, 1901; 11851, Jan. 4, 1902; 
11914, Jan. 16, 1902; 12759, June 10, 1902; 15059, Aug. 10, 1903; 
15330, Oct. 14, 1903; 15657, Jan. 11, 1904; 16637, July 26, 1904; 
18021, May 19, 1905; 19934, June 20, 1906; 20991, Oct. 11, 1907; 
26007, Dec. 29, 1909, and Mar. 4, 1910. 

I D 3 c (12). A discharged general prisoner applied for reenlist- 
ment. Held, that under the act of August 1, 1894 (28 Stat. 216), he 
was ineligible as his service during his last term had not been honest 
and faithful.2 0. 2496, Aug. 5, 1896. 

I D 3 c (13). A deserter was convicted, and that part of his sentence 
imposing dishonorable discharge was mitigated. Held, that if his 
service continues honest and faithful to date of discharge he may be 
discharged with remark "service honest and faithful" and no objec- 
tion known to his reenlistment. 0. 10620, Mar. 9, 1903; 21536, May 
17, 1907. 

1 D 3 c (14). A soldier deserted, was apprehended and restored to 
duty without trial. His company commander proposes to give the 
soldier character excellent, but understands that because of the deser- 
tion he will be forced to state on the man's discharge that his service 
has been *'not honest and faithful," lield that if the soldier's service 
continues honest and faithful to the end of his enlistment he may be 
discharged with the remark "service honest and faithful" and the 
further remark "no objection known to his reenlistment," as it is not 
considered that the policy of the War Department should be to place 
an insuperable barrier to a man's reformation by holding that no 
matter now honest and faithful his latter service may be, a fault once 
committed can not be atoned for, and that Congress has held this rule 
is shown b;^ section 1352, R. S., which authorizes the Secretary of 
War in certain cases to remit in part sentences of certain military con- 
victs and to give them honorable restoration to duty in case the same 
is merited. 0. 15639, Dec. 19, 1903; 9735, Jan. 31, 1901; 16838, 
Sep. 1, 1904; 17541, Feb. 13, 1905; 18214, June 26, 1905. 

^ See Power of Secretary of War to decide this question (post.). 

2 See Enlistment I D 3 c (IS) to (19) for statement of the discretionary authority 
of the Secretary of War in such cases. 



ENLISTMENT I D 3 C (l5). 619 

I D 3 c (15). A soldier was convicted of desertion but not sen- 
tenced to dishonorable discharge. Held, that the desertion is not con- 
clusive against the service being considered honest and faithful. 
C. 2004, Jan., 1896; 2121, Mar., 1896; 3530, Sept., 1897; 3794, 
Jan., 1898; 21536, May 17, 1907. 

I D 3 c (16). A soldier deserted, enlisted from desertion, was recog- 
nized, tried, and convicted of desertion, his sentence not including dis- 
honorable discharge. A board of officers, convened to determine the 
character to be given, recommended that he be given ''character good 
subsequent to desertion," and "service not honest and faithful," 
under the belief that the desertion required it. Held, that there was 
no legal objection to noting his service as honest and faithful. C. 
12395, Apr. 10, 1902; 5569, Dec. 22, 1898. 

I D 3 c (17). A soldier, on account of being at the time of his dis- 
charge under sentence of a general court-martial which did not include 
dishonorable discharge, was discharged without honor. His eompany 
commander requested authority for his reenlistment. Held, that 
there was no objection to remitting the unexecuted part of his sen- 
tence with permission to reenlist him for the company of the officer 
making the request. C. 16638, July 29, 1904; 11741, Jan. 11, 1902. 

I D 3 c (18). It is not practicable to prescribe what misconduct 
shall constitute a failure to render honest and faithful service within 
the meaning of the act of Congress approved August 1, 1894,(28 Stat. 
216), regulating enlistments. Each case should be decided upon its 
own merits. C. 2158, Mar. 1896. The decision is a matter intrusted 
to the discretion of the Secretary of War.^ The restriction relative to 
deserters imposed upon him by the proviso in sec. 1, of the act of June 
16, 1890 (26 Stat. 157), being limited solely to the purposes of that 
act, does not apply to the act of 1894. C. 2004, Jan., 1896; 2121, 
Mar., 1896; 3530, Sept., 1897; 3794, Jan., 1898;^ 5569, Dec, 1898.^ 

I D 3 c (18) (a). A soldier was discharged with character *'fair" 
and service ''not honest and faithful." Held, that it is within the 
discretion of the Secretary of War to decide that this man's service 
was honest and faithful during his last preceding term of enlistment, 
and that, if he so decides, the soldier's reenlistment may be legally 
authorized. C. 14782, June 9, 1903; 14913, July 9, 1903. 

I D 3 c (18) (6). A soldier, after serving a five-year enlistment, 
reenlisted, deserted, and, while in desertion, reenlisted again under 
an assumed name; was apprehended and restored to duty without 
trial, making good the time lost, etc. He was discharged as sergeant 
with "character excellent in eveiy respect," and upon apphcation 
for reenlistment, Jield, that the Secretaiy of War may decide that the 
soldier's last term of service was honest and faithful, notwithstanding 
that during some portion of it he was a deserter, and that cases of 
this kind should be decided on their merits as justice mav dictate.^ 
C. 2004, Jan. 22, 1896; 2025, Jan. 29, 1896; 2121, Mar^ 11, 1896; 
2384, June 23, 1896; 3530, Sept. 21, 1897; 3794, Jan. 18, 1898; 12004, 
Feb. 1, 1902. 

I D 3 c (18) (c). Where a soldier has been discharged without 
honor upon the ground that his service was not honest and faithful, 
held, that while the discharge could not be revoked, the Secretary 

» See III Comp. Dec, 557. « See Cir. 73, W. D., series 1907. 



620 ENLISTMENT I D 3 C (iS) (d) . 

of War could upon an application to enlist reconsider the question of 
the character of the applicant's service, and if found to have been 
in fact honest and faithful, could authorize his enlistment/ C. 1197, 
Apr., 1895; 415, Oct. 1, 1894; 2423, July, 1896; 3131, Apr., 1897; 
9039, Sept. 28, 1900; 9728, Feb. 1, 1901; 11741, Jan. 30, 1902. 

I D 3 c (18) (d). A board of officers decided that a soldier's service 
had not been honest and faithful for purposes of furlough under the 
act of June 16. 1890 (26 Stat. 157), and for the purpose of deciding 
whether or not he should receive his retained pay. He was not granted 
a furlough and was discharged without honor, forfeiting all pay and 
allowances. Upon request for reenlistment it was held that the action 
of the board was merely advisory to the Secretary of War; that he was 
the authorit}^ vested in such cases (directly or representing the Presi- 
dent) with power of determining whether service has been honest and 
faithful; that the finding of the board was not a judicial determina- 
tion of that fact; and that the Secretary of War may decide that 
the man is not debarred from reenlistment. Permission was granted 
for the soldier to reenlist and he was reenlisted. C. 1197, Apr. 4 
and June 21, 1895; 2731, Nov. 7, 1896. 

ID 3 (18) (e). A soldier was dishonorably discharged by sent- 
ence of a court-martial for other offenses than desertion and upon 
his applying for reenlistment, held, that although a dishonorable 
discharge is prima facie evidence that the service is not honest and 
faithful, still it is within the discretion of the Secretary of War to 
determine, for the purpose of reenlistment, whether a soldier's previ- 
ous service has been honest and faithful, under the provisions of the 
act of August 1, 1894 (28 Stat. 216). C. 4667, July 26, 1898; 44O6, 
June 27, 1898; 4419, June 20, 1898; 4665, June 25, 1898; 46OI, July 
15, 1898; 5339, Nov. 17, 1898; 5658, Jan. 11, 1899, 5675, Mar. 2, 
1899; 6477, June 22, 1899; 6576, June 13, 1899; 6727, July 11, 1899; 
7070, Sept. 26, 1899; 7254, Nov. 3, 1899; 7456, May I4, 1900; 7576, 
Jan. 12, 1901; 9781, Feb. 7, 1901; 9789, Feb. 7, 1901; 9811, Feb. 11, 
1901; 10208, Apr. 11, 1901; 12374, ^pr- 7, 1902; 12741, June 30, 
1902; 13044, Dec. 13, 1902; 13196, Aug. 25, 1902; 16252, Oct. 4, 
1904; I654O, July 2, 1904; 16798, Aug. 30, 1904; 19823, May 31, 
1906; 26007, Jan. 13, 1912. 

I D 3 c (18) (f). Upon application for reenlistment of a deserter, 
tield, that the Secretary or War has power to decide, on the facts, 
that the prior service was honest and faithful, although it included a 
desertion, but that it would have to be a very strong case. C. 20991, 
Jan. 2, 1907. 

I D 3 c (18) (g). A soldier shot and killed another soldier. He 
was tried and convicted by general court-martial and sentenced to 
serve five years in the penitentiary. The unexecuted part of his 
sentence was remitted. Upon request for further relief by friends, 
lield, that it was within the power of the Secretary of War to decide 
for the purpose of enlistment that, notwithstanding his dishonorable 
discharge, the last term of service of this soldier was honest and 
faithful, and reconvmended that the Secretary so decide. G. 5675, 

^ But see the act of Mar. 3, 1909 (35 Stat. 836), in which Congress authorized the 
Secretary of War to appoint a court of inquiry with jurisdiction to pass on the char- 
acter of men discharged without honor because of the Brownsville shooting affray. 



ENLISTMENT I D 3 C (is) (h). 621 

Apr. 13, 1899; 5339, Nov. 19, 1898: 6477, Aug. 3, 1899; 9494, 
Jan. 5, 1901. 

I D 3 c (18) (^). A soldier was convicted of desertion and not 
sentenced to dishonorable discharge. Held, that after a board had 
decided that his service was not honest and faithful, the Secretary- 
had discretion to decide whether his service was honest and faithful. 
a 20991, Apr. 28, and May 25, 1910. 

I D 3 c (18) {%). A commissaiy sergeant was dishonorably dis- 
charged by sentence of a general court-martial upon conviction of 
embezzlement. Upon application for reenhstment, held that while 
it is within the discretion of the Secretary of War to determine, for 
the purpose of reenhstment, the character of prior services, he can not 
properly determine such services to be honest and faithful where, as 
in this case, it appears that the applicant was guilty of the offense 
for which he was sentenced to dishonorable discharge, and the offense 
is one ordinarily calling for such punishment. C. 12741, June 30, 
1902, and Nov. 30, 1909; 10138, Apr. 8, 1901; 11650, Nov. 25, 1901; 
15748, Jan. 11, 1904; 15837, Jan. 28, 1904; 15961, Mar. 1, 1904; 
26007, Nov. 28, 1911. 

I D 3 c (18) (Jc). A discharged general prisoner applied for reen- 
hstment. Held, that notwitnstandmg his dishonorable discharge 
the Secretary of War had discretion to decide whether or not, in view 
of all the cuTumstances of the case, his service during his last term of 
enlistment was honest and faithful within the meaning of the act of 
August 1, 1894 (28 Stat. 216). C. 9714, Jan. 29, 1901; 15603, Dec. 
12, 1903; 19017, Dec. 18, 1905; 26007, Jan. 3, 1912, and Jan. 13, 1912. 

ID3 c (18) (Jk) [1.] A discharged general prisoner applied for reen- 
hstment. Held, that as his service during his last preceding term of 
enlistment was clearly not honest and faithful, the act of August 1, 
1894, did not, in that instance, give the Secretary of War the power 
to waive that objection to his enlistment.^ G. 4^^, ^^t- U 1894; 
4466, June 30, 1898; 4832, Aug. 31, 1898; 6378, May 3, 1899; 26007, 
Dec. 11, 1911. 

I D 3 c (18) (1). A soldier deserted, surrendered, was tried and 
convicted of desertion, and sentenced to dishonorable discharge 
with confinement for 18 months. A troop commander requested 
that the unexecuted part of the prisoner's sentence be remitted and 
that permission be granted for the man to enlist in his troop. Held 
that it is within the discretion of the Secretary of War to decide 
whether the service of this man was honest and faithful. C. 17658, 
Mar. 11, 1905; 16909, Sept. 21, 1904; 17052, Oct. 25, 1904; 17661, 
Mar. 13, 1905. 

I D 3 d (1). The question of whether a soldier's services have been 
honest and faithful under i\\e act of March 3, 1899 (30 Stat. 1073), 
which grants extra pay to men who served outside the United States 
during the Spanish War, depends on the manner of his serving and 
the character of his services. Held that this is without regard to the 
circumstances of his enlistment or the methods by which he procured 
the same, or his physical condition prior to enlistment. C. 6732, 
July 21, 1899. 

I P 3 d (2). The act of January 12, 1899 (30 Stat. 784), made 
provision for the granting of extra pay in lieu of leaves of absence and 

iSee Cir. No. 73, W. D., Oct. 31, 1907. 



622 ENLISTMENT I D 3 d (s). 

furloughs to officers and enlisted men of the United States Volunteers 
who had served honestly and faithfully without the limits of the 
United States during the Spanish War. Similarly, the act of March 
3, 1899 (30 Stat. 1073), made provision for extra pay to enlisted men 
of the Regular Army who had so served honestly and faithfully. 
Helcl that the service of a soldier who, while absent without leave and 
under the influence of liquor, had fallen and died from the resulting 
concussion of his brain, should not be considered as having been hon- 
est and faithful within the meaning of the two laws cited above. 
C. 7333, Nov. 29, 1899. 

I D 3 d (3). An officer of Volunteers was tried on the charge of 
embezzlement, and sentenced to be dismissed the service and to be 
confined in a penitentiary at hard labor for one year. Upon applica- 
tion for two months' extra pay under the provisions of the act of 
January 12, 1899 (30 Stat. 784), and March 3, 1899 (30 Stat. 1073), 
lield, that he was not entitled to the extra pay as the fact that as 
defendant in a suit brought against him by the United States for the 
value of bacon embezzled, he was willing to confess judgment for so 
much of the bacon as was not recovered by the Secret Service, furnished 
indubitable proof that his service had not been honest and faithful. 
C. 10908, June 6, 1906. 

I D 3 d (4). Section 3, General Orders 13, Headquarters of the 
Army, 1899, extending paragraph 148, Army Regulations, to officers 
of Volunteers, operates m connection with said paragraph as a regu- 
lation in aid of the statute, viz, the act of January 12, 1899 (30 Stat. 
784), which provides for extra pay to officers and enlisted men of 
the Volunteer forces who served outside the limits of the United 
States during the Spanish War. Held, that the above-cited section 
and paragraph provide a means of determining whether the services 
of an officer or enlisted man have been honest and faithful; and that 
when under this statute a board has been appointed its approved 
fincUng should be held to be conclusive, as should also the decision of 
the commanding officer, when no board has been appointed or applied 
for, since discretion has been vested in them by the Secretary of War. 
C. 6409, May 29, 1899; 15928, Mar. 10, 1904; 16801, Sept. 7, 1904. 

I D 3 d (5). An officer of Volunteers was tried, convicted, and sen- 
tenced to chsmissal by an illegally constituted court. The sentence 
did not operate, as it was null and void. Upon application for extra 
pay under the act of January 12, 1899 (30 Stat. 784), held, it has never 
been held that the trial and conviction by court-martial of an officer 
or enlisted man necessarily stamps his service as not honest and 
faitliful; if it were so held no option would remain as to the quality 
of the service. A man once convicted by a covu^t-martial would, under 
such a ruling, suffer a continuing punishment so far as his military 
record was concerned; and the law might then be translated to mean 
that no man who had ever been tried by court-martial, and found 
guilty, could be reenlisted or could, on discharge, have his service rated 
as ''honest and faithful." The punishment awarded by a court- 
martial is supposed to be sufficient to meet the offense committed, 
and not to carry with it a black mark which amounts to a continuance 
of punishment beyond the terms of the sentence. Held, in this par- 
ticular case, that the officer was entitled to have his service considered 
as honest and faithful. C. 16801, Sept. 7, 1904. 



ENLISTMENT T D 3 e (l). 623 

I D 3 e (1). Joint resolution of Congress of June 28, 1906 (34 Stat., 
836), provided that in the administration of the pension laws any 
commissioned officer of the Army who had received an honorable 
discharge from a subsequent commission should be held and consid- 
ered to have been honorably discharged from all previous contracts 
of ser^dce as a commissioned officer. An officer after ha^dng been 
summarily dismissed by direction of the President and having had 
the disabilities resulting from such cUsmissal removed by the Presi- 
dent's order, was mustered in as a colonel of Volunteer troops, and 
later cashiered by sentence of a general court-martial from the Army. 
This sentence was set aside by War Department orders, which restored 
him to his command with pay from date of dismissal. Subsequently 
he was brevetted brigadier general of Volunteers for faithful and 
meritorious service. Held that his entire service while hokUng the 
last commission as colonel in the Volunteer service was faithful. 
C 26282 Feb. 28 1910. 

II A. The act 'of March 3, 1863 (12 Stat. 731), for enrolling and 
calling out the national forces, and for other purposes, divided the 
United States into districts and created a board of enrollment for 
each district, whose duty it was to enroll all persons in that dis- 
trict who were subject to military duty, and, after the President had 
assigned to a district the number of men to be furnished b}^ that 
district, to draft that number and 50 per cent m addition, and make 
an exact and complete roll of the names of the persons so drawn, 
and the order in which drawai. Held, that the enrollment only 
established the liability of men so enrolled to be called out, and did 
not put them into the military service. Also lieJd, that neither the 
draft nor the act of reporting at the rendezvous put them mto the ser- 
vice, but that the acceptance of a drafted man by the board of enroll- 
ment after his physical examination by the surgeon on the board 
operated to put him in the service, and that no muster in was neces- 
sary. P. 50, 311, Nov. 23, 1891; C. 1570, July 25, 1895; 2033, Feb. 
4 and Aug. J+, 1896; 2050, Feb. 11, 1896; 2041, May 82, 1896; 2042, 
May 28, 1896; 2085, June 6, 1896; 2389, Aug. 1, 1896; 4081, July 
15, ^1898; 20237, Aug. 15, 1906. 

II B 1. The exemptions from the conscription m the late CivU 
War are specifically set forth in section 2 of the act of March 3, 1863 
(12 Stat. 731), and section 10 of the amendatory act of February 24, 
1864 (13 Stat. 8). The exempting provision of the later act in effect 
repealed and superseded that of the earlier act, so that a person 
exempted and not drafted under the act of 1863 may have been 
liable to draft under that of 1864. P. 64, 498, May, 1894- 

II B 2. In 1898 the question was raised as to whether or not 
members of religious sects whose tenets forbid members to engage 
in war or armed conflict are exempt from service in the Army. Held, 
that the act of March 3, 1863 (12 Stat. 731), is no longer in force.^ 
a. 4424, Mar. 22, 1898; 54O6, Nov. 29, 1898; 5794, Feb. 3, 1899; 
7905, Mar. 31, 1900; 20076, May 15, 1906. 

II C. The act of March 3, 1863 (12 Stat. 731), provided for the 
discharge of drafted men who were rejected by the enrollment board. 

^ But see the act of Jan. 21, 1903 (32 Stat. 775), which exempts members of any 
well-recognized religious sect or organization organized at that time (Jan. 21, 1903) 
from service in the militia or any other armed or volunteer force under the juris- 
diction of the United States. 



624 ENLISTMENT ENROLLMENT. 

Held that xhe word "discharged" as there used did not mean dis- 
charged from the military service, but only a release from liability 
to service. P. 60, 314, Nov. 23, 1891; C. ^1570, July 25, 1895. 

II D. Section 13 of the act of March 3, 1863 (12 Stat. 733) 
provided that any person drafted and notified to appear may, on or 
before the day fixed for his appearance, furnish an acceptable substi- 
tute to take ms place in the draft, or he may pay to such person as the 
Secretary of War may authorize to receive it, such sum, not to exceed 
$300, as the Secretary may determine, for the procuration of such 
substitute. Held, that drafted men who were forced to enter the 
service, and substitutes for drafted men who entered the service in 
lieu of the men drafted, stand on the same footing and should be 
treated alike. If a name not drawn is substituted on the list of those 
drawn for a name that was drawn, then the name substituted and the 
person who bore it are treated as if that name had been drawn instead 
of the one for which it was substituted. C. 1570, July 25, 1895. 

II E. The act of March 3, 1863 (12 Stat. 731), provided that a 
drafted man who should fail to report at the rendezvous without 
furnishing a substitute or paying the commutation should be deemed 
a deserter. Held, that the object of this provision was to enforce the 
appearance of those notified, and that holding these men to be 
deserters was not in conflict with the view that drafted men were not 
in the service of the United States until they were accepted by the 
board of enroUment. P. 50, 314, Nov. 23, 1891; C. 2041, May 28, 
1896; 2042, May 28, 1896. 

II F. A soldier deserted from the Ninth Kentucky Infantry, 
November 10, 1862, and while in desertion was drafted September 
29, 1864, and served under the draft as a private in Company F, 
Thirty-eighth Indiana Infantry. Held, that his being drafted and 
his service as a drafted man were not aft'ected by his being a soldier 
in desertion at the time and that his condition or status as a soldier 
in desertion was not affected by his being drafted or by his service as 
a drafted man. C. 2106, Mar. 21, 1896. 

CROSS REFERENCE. 

Eligibility of dismissed officer for See Office IV E 1 c; 2 f. i 

Expiration of, while in confinement . . .._... See Discipline XII B 3 g (2). 

Extension of, by sentence See Discipline XII B 4 a; b. 

In enemy's army See Desertion I C 2. 

Insane soldier See Insanity I A 1. 

Militia See Militia V to VI. 

Of retired soldier See Retirement II F 2. 

Of prisoner of war See War I C 11 c (6) (a) ; d (3). 

Pay before See Pay and allowances I A 1 a. 

United States Volunteers See Volunteer Army II C 2. 

ENLISTMENT CONTRACT. 

Breach of See Absence II B 8 b. 

Civil liability under See Desertion V B 6; XIV A 1; 3. 

Civil obligation under See Pay and Allowances I C 2; III C 2 b. 

ENROLLMENT. 

Is not muster-in See Volunteer Army II B 1 b. 

Ofdraftedmen See Desertion XVI Dig. 

Enlistment II A. 
Of volunteers, status See Volunteer Army II C 1. 



ESCAPE EXIGENCY. 625 

ESCAPE. 

See Desertion I C 1; C 2. 

Accused See Discipline VIII H 2; XVII A 4 c. 

Conniving at See Desertion III E; V B 16. 

Force to prevent See Discipline XVII A 4 g (4) ; (6) ; i. 

From civil authorities See Article ob* War LIX K. 

From military authorities See Article of War LXII D. 

General prisoner under unaccepted jmrdon . .See Pardon II A. 

Statute of limitations runs in See Article of War CIII G. 

Suffering to See Discipline II D 6. 

Time spent in must he served See Discipline XVII A 4 b ; c. 

ESCHEAT. 

0/ estate of deceased inmate of Soldiers' 

Home See Soldiers' Home I F. 

Of private propertu See Army I G 3 d (8) (6). 

ESTOPPEL. 

Of claimant See Claims I. 

EXAMINATION. 

Bonds See Bonds V E. 

Candidate for commission See Office III Alb (4). 

Date of suspension from rank See Rank V C to D . 

Failure to pass See Office IV F. 

For commission in Volunteers See Militia XVII A. 

For promotion See Retirement I B 6 to 8. 

Of detailed staff officer See Army I G 3 b (4) (6); (c). 

Of officer ■ See Discharge II A 1; III F 2; XVII B. 

Discipline III E 5 b. 

Promotion subject to See Office III B 3 a (4) (a); {b). 

Second See Army I G 3 d (2) (a). 

EXAMINING BOARD. 

For promotion See Discharge XVII B. 

Retirement I B 6 to 8. 

EXCHANGE. 

Disbursing officer can not take credit for See Public sioney II E. 

Of public money by disbursing officers See Public money VIII. 

EXCHANGE OF PUBIIC PROPERTY. 

Between departments See Public property. I B. 

Requires authority of Congress See Public property I A 4. 

EXECUTOR. 

Execution of contract by See Contracts I B 2; 3. 

EXEMPTION. 

From being called forth See Militia IV A. 

From, service See Enlistment II B 1; 2. 

From.^ taxes See Retirement I G 2 e. 

Of private property from attachment See Private debts XI. 

EXIGENCY. 

Under 3709, Revised Statutes See Contracts VII A to B . 

93673°— 17 40 



626 EXPEDITION EXTRADITION. 

EXPEDITION. 

Military, defined See Army II K 1 a. 

EXPENDITURES. 

In excess of appropriation See Contracts XIII to XIV. 

EXPERT. 

Payment of, in connection with test of coal.. See Appropriations XLVIII. 

Witness See Discipline IV B 3 d (1); XI a 8. 

Witness, payment of. See Discipline X I 3. 

EXPLANATION. 

By member of general court martial See Discipline VI D. 

By officer See Discipline III E 7. 

EXTERRITORIALITY. 

Rule of, as to Army transport See Army I G 3 b (2) (a) [3] [g]. 

EXTRADITION. 

I. FOR ACT COMMITTED IN DEMANDING STATE Page 626 

n. BETWEEN THE UNITED STATES AND MEXICO. 

A. Mexico the Demanding State. 

B. The United States the Demanding State Page 627 

in. EXTRADITION OF DESERTERS. (See Desertion.; 

IV. OF SOLDIER FROM COUNTRY UNDER OUR MILITARY CONTROL. 

I. Fugitives from justice are not surrendered by one Government 
to another under extradition treaties except on account of offenses 
committed within the jurisdiction of the Government demanding tiieir 
extradition. So where a United States soldier deserted and went to 
Canada and there forged a check on tlie assistant treasurer, New 
York, which was paid, held that he could not be extradited for the 
forgery thus committed outside the jurisdiction of the United States. 
P. S3, 446, May, 1892. 

II A. By Article II of the extradition treaty with Mexico of Decem- 
ber 11, 1861, it is stipulated that: ''In the case of crimes committed in 
the frontier States or Territories of the two contracting parties, requi- 
sitions may be made through their respective diplomatic agents, or 
through the chief civil authority of said States or Territories, or 
through such chief civil or judicial authority of the districts or coun- 
ties bordering on the frontier as may for this purpose be duly author- 
ized by the said chief civil authority of the saicl frontier States or Terri- 
tories, or when, from any cause, the civil authority of such State or 
Territory shall be suspended, through the chief military officer in com- 
mand of such State or Territory. " So where a United States soldier 
charged with havmg committed a crime against the laws of Mexico was 
held in military custody within the State of Texas, held that, as a 
requisition by the Mexican Government directly upon the military 
commander in Texas would not be authorized, such commander would 
not be justified in taking action upon an application for such surrender, 
aoad that any application made through him would properly be trans- 



EXTRADITION EVIDENCE. 627 

mitted to the Secretary of War to be referred to the State Depart- 
ment. R. 38, 118, July, 1876. 

II B. The extradition treaty between the United States and Mexico 

Provides that "when from any cause the civil authority" of a frontier 
tate, etc., of either nation "shall be suspended, " the requisition shall 
be made "through the chief military officer in command of such 
State, "etc. A criminal having escaped into Mexico from Texas at a 
time when the civil authority of that State was suspended as a result 
of the Civil War, a requisition for him was issued, not by the officer 
commanding in the State but by a subordinate of inferior rank. Held 
that as such action was clearly unauthorized, the Mexican Government 
was justified in refusing to comply with the requisition, and that a new 
one should accordingly be made by the proper commander. R. 29, 4, 
June, 1869. 

IV. The arrest and delivery of a soldier serving in the Philippine 
Islands or Cuba to the authorities of one of the United States is not, 
during the military occupation of such places by the United States, a 
matter of international extradition. If a soldier so serving has been 
indicted in one of the States, the War Department may legally direct 
his surrender to such civil officer as may be sent, supplied with the 
proper papers, to receive him. C. 5955, 6055, Mar. 1899; 8^25, 
June 15, 1900; 13389, Nov. 12, 1902. 

CROSS REFERENCK. 

Of deserters See Desertion IY A to C; V F 9. 

EXTRA DUTY. 

By post noncommissioned staff officers See Army I E 2 c. 

Noncommissioned officers See Army I B 2 a (3). 

Pay See Pay and allowances I C 6 to 7. 

Pay from special appropriations See Pay and allowances I C 6 d. 

EXTRAS. 

As additional work See Contracts VII J to VIII. 

EVIDENCE. 

Before surveying officer See Public property I F 3 to 4. 

Certificates of officers See Militia XVI H. 

Criviinating See Discipline X II 1; 2; XI A 14 b; b (1). 

Introduced after plea of guilty See Discipline IX E 5 a to b. 

Ne^^', after approval of sentence See Discipline XV F 8. 

Newly discovered, effect on a settled claim See Claims I. 

Not received after finding See Discipline IX E 5 b. 

Of challenge See Articles of War XXVI A. 

Of desertion See Desertion IX A to O; I E. 

Of discharge See Discharge XIV A 1. 

Of disrespect See Discipline II D 13 a. 

Of embezzlement See Articles of War LX A 4. 

Of fraud or dishonor See Discipline VIII A 2. 

Of identity See Discipline V B 1; X H 2. 

Of muster in See Volunteer Army II D 1 . 

Of rank of enlisted man See Rank I D to E. 

Patentee is inventor See Patent I . 

Pleading of See Discipline IX E 3. 

Presumption of lav^ See Discipline IV E. 

Record of See Discipline XIII K. 

Rules of. See Discipline XI A to B. 

Statem£nt of accused.... See Discipline V H 1 ; 2, 



628 FALSE ACCUSATION FELON. 

FALSE ACCUSATION. 

See Articles op War LXI B 2. 

FALSE CERTIFICATE. 

See Articles of War LXI B i. 

FALSE CLAIM. 

See Articles of War LX A to F. 

FALSE REPORT. 

See Articles of War LXI B 1. 

FALSE STATEMENT. 

See Articles of War LXI B 1; LXIID. 
As evidence See Discipline XI A 18. 

FALSE SWEARING. 

See Articles of War LXII C 9. 
Discipline VII F. 

FAMILY OF OFFICER. 

Occupation of quarters by See Pay and Allowances II A 2 b (2). 

Transportation by sea See Army I G 3 b (2) (a) [3] [f]. 

FATAL DEFECT. 

See Discipline IX H 1. 

Absence of member See Discipline XIV E 9 a (2j). 

Court not sworn See Articles of War LXXXIV B. 

List of. " See Discipline XV E to F. 

Proceedings of examining board See Retirement I B 6 e (1). 

Right to challenge not extended See Discipline XIII C 2 a. 

Variance in name See Discipline XIV E 9 a (3). 

FATIGUE. 

As a punishment See Discipline XVII A 1. 

FEDERAL OFFICE. 
Retired officers eligible for See Retirement I G 3 a to b. 

FEDERAL TROOPS. 

See Army. 

Militia II to III. 

FEES. 

Of witness before general court-martial See Discipline X I to K. 

FELON. 

Enlistment of See Enlistment I A 9 c (2); D 3 c (4); (5); 

(18) (g). 

Fraudulent enlistment of See Enlistment I A 9 f (5). 

Re-enlistment of. See Enlistment I D 3 c (3). 



FELONY FLAG. 629 

FELONY. 

Stealing hay from military reservation See Command V A 3 g. 

FENCES. 

Claim for damage to, by soldier See Claims II; IV. 

' FILIPINO. 

See Officer's servant II to III. 
Is not citizen of United States See Desertion XIV B 1. 

FINAL STATEMENT. 

Not part of discliarge See Discharge, XIV A 1. 

FINDING. 

See Discipline, XII A to B. 

Disclosing of. See Articles of War, LXXXI V C 4. 

Examining Board See Retirement, I B 6 to 7. 

Retiring hoard See Retirement, I B 2 to 3. 

FINE. 

See Pay and allowances, III D to E. 

As -punishment See Discipline, XII B 3 e (4) . 

Disposition of. See Public money, I M. 

FINGER PRINTS. 

Of accused See Discipline, V B 1; X H 2. 

Of interned prisoners improper See Army, II K 1 h (1) . 

FISHING. 

By civilians on military reservation See Command, V A 3 f. 

FISHING PASS. 

See Absence, I C 3. 

FLAG. 

I. DESCRIBED ' Page 629 

n. TRADE-MARK CAN NOT COMPRISE. 

ni. A STATE CAN PROTECT THE FLAG Page 630 

IV. INSULT TO FLAG. 

V. ACCEPTANCE OF FLAG. 

I. The flag of the United States is described in the Revised Statutes 
(sees. 1791-1792), the flags of foreign nations are recognized under 
international law and the Army Regulations, and the flag of the 
Geneva Convention is recognized, by law and regulations. 

Beyond tliis, if we except the flag of truce in time of war and cer- 
tain nags or guidons used to distinguish inilitaiy persons and units, 
this office has no knowledge of any flag being officially recomized 
either by the War Department or the United States in the ordinary 
sense in which the word " recognition ' ' is used. 0. 22135, Sept. 26, 1907. 

II. Held, that under the act of February 20, 1905 (33 Stat. 725), a 
trade-mark can not be registered which consists of or comprises the 



630 FLOATABLE STREAMS FORFEITUHE. 

flag, coat of arms, or other insignia of the United States, or any simu- 
lation thereof, or of any State or municipality, or of any foreign nation. 
G. 499, May 6, 1905, and Sept. 28, 1906. 

III. Held, that it is within the authority of a State to prohibit the 
flag from being put to improper uses.^ C. ^99, Mar. 18, 1907, and 
Apr. 12, 1907. 

IV. Held, that if the flag of the United States is insulted in such a 
manner as to constitute a menace to the public peace, the law of the 
State should be invoked to provide an adequate remedy. C. 599, 
Feh. 21, 1906. 

V. Held, that the Executive Department has no authority in the 
absence of legislation to accept any flag on behalf of the United States.- 
C. 10004, Mar. 19, 1901. Held, that recaptured flags can be returned 
to a regiment if still in the service. P. 118, Feh. 21, 1893. 

CROSS REFERENCES. 

Of another country See Alien I. 

Of truce See War I C 9 . 

Recapture of See War I C 6 c (3) (c) [2]. 

FLOATABLE STREAMS. 

Navigation of. See Navigable waters I A 2. 

FORAGE. 

Sale to retired officers See Army I G 3 b (2) (c). 

Claim for furnishing See Claims XII L. 

FOREIGN GOVERNMENTS. . 

Employment of United States civilian em- 
ployee by See Civilian employees VI A. 

Permission to pass throughforeign territory. .See Army I G 3 b (2) (a) [2] [a]; [6]. 
Remuneration from See Army I C 3. 

FORFEITURE. 

Because of absence See Absence II B 8 a. 

Because of contempt of court See Articles op War, LXXXVI B 1 a. 

By civilian employees See Appropriations LXVI. 

By sentence See Discipline XII B 3 e (1). 

Can not be implied See Pay and allowances II A3 a (1); III 

A 2 a. ■ 

Certificate of merit-pay See Insignia of merit II K. 

Civilian employee' s pay See Articles op War LXIII E. 

Deposited money See Pay and allowances I C 7 a to b. 

Deserter's pay and allowances See Desertion XIV A to F. 

Diversion of , improper See Army I B 2 b (2) (6). 

In connection with stoppage under fifty- 
fourth article of war See Articles op War LIV D 2. 

Of pay and allowances See Pay and allowances II A 3 a (3) (a); 

III C to D. 

Of private property See Discipline XVII A 4 g (5). 

Several penalties of. See Articles of War LXXXIII C; Cl a. 

1 See Halter 1;. Nebraska, where it was held that a State statute punishing the desecra- 
tion of the flag of the United States and prohibiting the sale of articles upon which 
there is a representation of the flag for advertising purposes is not unconstitutional. 
(205 U. S., 34.) Several States have passed laws having for their object the enforce- 
ment of respect for the flag. 

2 The Federal Government keeps flags that were captured from enemies, and restores 
when possible to regiments or States flags that have been recaptured from enemies. 
(See H. Ex. Doc. No. 163, 50th Cong., Istsess.; War Dept., Cong. Doc. 2558.) 



FOREIGN SERVICE — FREIGHT. 631 

FOREIGN SERVICE. 

Counts double for retirement oj soldiers See Rktirement II A 4 b to d. 

Ofmilitia See Militia I E. 

War I C 8 c (1) (6). 

FORGERY. 

See Articles of War LXII B; D. 

By general prisoner See Pardon II a. 

By soldier See Articles op War LX B 1. 

Extradition for See Extradition I . 

Responsibility for forged checks See Public money II B 2. 

FORTIFICATIONS. 

Appropriations for See Appropriations XXX; XXXVII. 

Blank forms See Appropriations XXXVI D. 

Photographing See War I 6 g (1) . 

Responsibility for See Army I B 10. 

FRANCHISE. 

Exercise right of, by deserter See Desertion XIV B. 

Issuance of, war See Army I B 2 d (1) . 

FRAUD. 

See Articles op War. C A. 

In claims See Army I B 1 b. 

Muster in See Volunteer Army II D to F. 

Discharge V F 2. 

Muster out See Volunteer Army IV F to H. 

Post exchange steward See Government Agencies II J 8. 

Rejection of bid for See Contracts VI J 4. 

FRAUDULENT CLAIM. 

See Articles of War LX A to F. 
Discipline II Alb. 

FRAUDULENT DISCHARGE. 

May^be revoked See Discharge XV A, Al; 2; XVI A to B. 

FRAUDULENT ENLISTMENT. 

See Enlistment I A 9 to 10. 

Certificate of merit during See Insignia op Merit II D. 

Continuous service See Pay and Allowances I C 5 b (1;. 

Discharge without honor for See Discharge II B 1. 

Elements of See Articles op War E 1. 

Discipline XV E 11 . 

Forfeiture of clothing allowances for See Pay and Allowances III C 2 a. 

Policy in disposition under fiftieth article 

of war See Desertion VI B; XII A 1. 

Service— for retirement See Retirement II Ala. 

Statute of limitations on See Articles op War ClII H. 

Trial for See Discipline 111 E 3 a. 

Under fiftieth article of war See Articles op War L A. 

FREIGHT. 
Of Militia See Militia VII A to F. 



632 FUEL — GENERAL COURT-MARTIAL. 

FUEL. 

Heat and light See Pay and Allowances II A 1 to 2. 

To Militia See Militia VI B 2 i. 

FURLOUGH. 

See Absence. 

Arrest while on See Articles op War LIX I 2. 

Cadet See Army I D 2 a. 

Candidate for commission See Office III A 1 b (3) (a). 

Indefinite See Absence I C 4 g. 

Medical attendance See Claims VIII. 

Not actual service See Retirement II A 4 b (1). 

Not line of duty status See Gratuity I A 4 a (2) . 

FURNITURE. 

Appropriation for See Appropriation LI. 

Militia See Militia XVI I 4. 

Retired officer See Retirement IKS. 

GAMBLING. 

By officer See Articles of War LXI B 8. 

By officers or soldiers See Articles op War LXII D. 

GARBAGE. 

Sale of. See Public property I M. 

GARNISHMENT. 

Of public money See Public money II C to D. j 

GARRISON COURT-MARTIAL. 

See Articles of War LXXXII A to C 2; 
LXXXIII a to C 2. 
Discipline XVI E 5. 

Revieiv of proceedings See Articles op War CIV C 4. 

Discipline XVI B 1. 

GAS WELL. 

On military reservation See Public property I A 2. 

GENERAL AVERAGE CONTRIBUTION. 

See Claims VI to VII. 

GENERAL COURT-MARTIAL. 

See Discipline VI to XIV. 

Authority of. See Articles op War XCI G. 

Contempt of. See Articles op War LXXXVI A to B 

Copy ofrecordas evidence See Discipline XI A 17 a (2) (a) [1] [c]. 

Copy of record to accused See Articles of War CXIV A. 

Irregularities in proceedings of. See Articles of War LXXIII A 1 . 

Jurisdiction of. See Discipline III 5 b. 

Jurisdiction over civilians See Articles op War LXIII A to E. 

No jurisdiction over private debts See Pay and allowances III D 2. 

Power to sentence See Pay and allowances III C 1 a (1) (a). 

Quorum See Articles op War LXXV B 1 to 4. 

Referring cases to See Command V A 4. 



GENERAL HOSPITALS — GOOD CONDUCT. 633 

GENERAL HOSPITALS. 

See Army I G 3 d (7) to (8). 

GENERAL MESS. 
Fund of See Government Agencies X. 

GENERAL OFFICER. 

See Army. 
Command.. 
War. 
Right to Aids See Army I B 2 f . 

GENERAL PRISONER. 

Apprehension of. See Desertion V B 17. 

Can not be restored to duty See Army I B 2 a (4). 

Civilian clothing for See Discipline XVII A 4 g (7). 

Clothing issues See Army I B 7 a. 

Pay and allowances II A 3 a (4) (e) 

Confinement m penitentiary See Desertion X C 1. 

Dependent parent See Discharge VI C 2. 

Disobedience of orders by See Articles of War LXII D. 

Forgery by See Pardon II A. 

. Fraudulent enlistment of. See Enlistment I A 9 f (3) . 

Insane See Insanity I A 2. 

Jurisdiction over See Discipline VIIlG2b; lid. 

Private property of. See Discipline XVII A 4 g (5). 

Private property of, destroyed See Claims IX. 

Redemption of. See Discharge II B 2 a. 

Reenlistment of, after release See Enlistment I D 3 c (12). 

Trial of. See Discipline II D 20. 

Witness before civil courts See Civil authority I B 3 a. 

GENERAL STAFF. 

Command by See Army I G 3 a (1) (a). 

Command I A 1 a. i 
Details to See Army I B 2 b (1) (a). 

GENEVA CONVENTION. 
Purpose of. ^ . See Red Cross I B. 

GIFT. 

From allies See War I C 6 d (1 ). 

Money to United States See Appropriations VII. 

Secretary of War can not accept land or inter- See Public property II A. 

est in land for United States. 
Secretary of War may accept personal prop- See Pl^blic property I G. 

ertyfor United States. 

GIVING INTELLIGENCE TO ENEMY. 

See Articles op War XXXXVI A; B. 

GOOD CONDUCT. 

Of prisoners _ See Discipline XVII A 4 f . 



634 GOVEIINMENT AGENCIES: SYNOPSIS. 

GOVERNMENT AGENCIES. ' 

I. GOVERNMENT AGENCIES AND INSTRUMENTALITIES IN GENERAL. 

A. Government Agencies May be Created by Either Legislative or 

Executive Authority Page 636 

B. Stoppage in Favor op CtOvernment Agencies. 

C. Debt Due Government Agency Collectible from Pay Where Pay 

is Received at Pay Table by Company Commander or Subse- 
quently Deposited with Him Page 637 

D. Loss op Funds op Government Agency. 

1. Custodian's responsibility greater than that of gratuitous bailee; he 

is official performing a duty. Illustrations Page 638 

2. Post not under command of division commander Page 640 

3. No appeal from decision of department commander, but Secretary 

of War may reexamine the case to determine whether a stoppage 
may be made. 

4. Procedure where deceased officer indebted to company funds leaves 

unindorsed check for amount of indebtedness. 

E. Government Agency May Sell Supplies to and Render Service for 

the Government. 

F. Disposition op Funds of Government Agency Where Agency 

Ceases to Exist Page 641 

G. Garnishment, Attachment, etc., of Public Property. (See Public 

MONEY.) 

H. Taxation of Government Agency. (See Tax.) 
n. POST EXCHANGE. 

A. Characteristics and Purposes op Post Exchanges. 

1. Government agency and recognized by acts of Congress. . . Page 643 

2. Not a corporation, but a cooperative store Page 643 

B. Officer in Charge. 

1. Allowance for services. 

2. Represents post exchange in litigation. 

3. If litigation necessary, may properly request to be furnished with 

counsel at Government expense. 

4. Not personaMy responsible to creditor of post exchange merely 

because exchange regulations make him responsible for manage- 
ment of exchange. 

5. Responsible for a shortage in exchange funds, notwithstanding his 

acquittal of charge of embezzling such funds Page 644 

C. Limitations as to Business. 

1. Can not accept deposits from soldiers. 

2. Can not collect a tax on dogs in a post. 

D. Credits by Post Exchange. 

1. To officers. 

2. To enlisted men. 

a. Credits in excess of amount authorized by regulations. 

E. Liability for Debts op Post Exchange. 

1. Officers stationed at the post not liable for debts of post exchange. 

F. Post Exchange Council, as well as Officer in Charge, May be 

Held Responsible for Losses. 

G. Post Exchange Buildings Page 645 

* Prepared by Maj. H. M. Morrow, judge advocate, assistant to Judge Advocate 
General. 



GOVERNMENT AGENCIES: SYNOPSIS. 635 

n. POST EXCHANGE— ContiDued. 

H. Appropriations for Post Exchange. (See Appropriation XXIX.) 
I. Membership of Post Exchange. 

1. Organizations comprising membership of post exchange construed 

as continuing organizations regardless of change in personnel. 

2. In case of dispute as to terms of admission of a new organization to 

an exchange the decision of department commander final, except 
in case of fraud Page 646 

3. Rule of distribution where membership of organization is reduced 

after it has bought into an exchange. 

4. Membership in the post exchange not obligatory on units forming 

garrison P('9^ ^^'^ 

5. What constitutes an organization or detachment competent to 

become a member of a post exchange. 
J. Miscellaneous. 

1. Several independent exchanges or one exchange with several 

branches may be established at a post. 

2. As post exchange is Government instrumentality it may be ordered 

to readjust accounts with a paymaster. 

3. Under paragraph 318, Army Regulations, 1910, as to proceedings of 

exchange council minority of council may make report, but only 
the proceedings of majority should be acted on by division 
commander. 

4. Regimental adjutant may receipt to receiver of a bank for divi- 

dends on deposits the regimental exchange officer having died. 

5. Government property may be transferred by a Government bureau 

to the post exchange. 

6. Telegrams on post-exchange business. 

7. In case of error on final statement transferred to a post exchange and 

final statement is paid by paymaster, the soldier and not the 
post exchange is the debtor to whom the paymaster should look 
for reimbursement for his overpayment Page 648 

8. Fraud by the steward of a post exchange is a military offense. 

9. Fuel and lights for a canteen are a proper charge against the Army 

appropriation for fuel and lights. 

10. Paragraph 1060, Army Regulations, 1910, as to issue of fuel where 

post exchange runs a laundry. 

11. A contribution may be made from the post exchange to support a 

"volunteer band" P^g^ 649 

12. "Volunteer band" not entitled to share in net profits. 
m. COMPANY FUND. 

A. Debts Due the Company Fund. 

1. A debt from an officer to a company on account of boarding with 

the company is a debt to the company fund. 

2. Where a company fund receives a percentage of the profits on work 

done by a private laundry, a debt due the laundry from a member 
of the company is not a debt to the company fund. 

3. No legal authority for loaning a portion of company fund to enlisted 

men to enable them to represent the conapany atan athletic meet. 

B. Expenditures From the Company Fund. 

1. Paragraph 331, Army Regulations, 1910, as to disbursing the com- 

pany fund "solely for the benefit of the company." 

2. A company exchange not being authorized by law, the company 

fund is not liable for its debts Page 650 



636 GOVEENMENT AGENCIES I A. 

in. COMPANY FUND— Continued. 

B. Expenditures From the Company Fund — Continued. 

3. The expense of a bond to secure a bank against loss on account of 
a lost certificate of deposit in favor of the company may be paid 
from the company fund. 
IV. SOLDIER CAN NOT BE REQUIRED TO PAY FOR THE LAUNDERING 
OF HIS CLOTHES BY AN EXCHANGE OR COMPANY LAUNDRY 
UNLESS HIS CLOTHES WERE ACTUALLY LAUNDERED THERE. 
V. LAW OF STATE OR TERRITORY CAN NOT PROHIBIT SOLDIER 
CARRYING HIS ARMS. 

VI. PRACTICE BY MEDICAL OFFICERS Page 651 

vn. EFFECT OF WAR DEPARTMENT ORDER AUTHORIZING COMPANY 

BARBER SHOPS, BILLIARD AND POOL TABLES. 
vni. BAND FUND OF "VOLUNTEER BAND" TO BE ACCOUNTED FOR 
LIKE A REGIMENTAL FUND. 
IX. RESPONSIBILITY OF QUARTERMASTER FOR EFFECTS OF DE- 
CEASED OFFICER RECEIVED FOR SHIPMENT. 
X. EXPENDITURE FROM FUNDS OF GENERAL MESS SHOULD BE 

SOLELY FOR THE BENEFIT OF THE MEMBERS OF THE MESS. 
XI. THE POWERS OF A GOVERNMENT AGENCY AS ESTABLISHED BY 
CONGRESS CAN NOT BE INTERFERED WITH BY THE EXECUTIVE 
OR BY ANOTHER GOVERNMENT AGENCY. 

I A. Congress may establish such agencies or instrumentalities 
in connection with the military establishment as it may deem neces- 
sary to the efficiency or comfort of the troops or desirable for their 
welfare. A similar right to establish Government agencies and 
instrumentalities and to prescribe suitable regulations for their gov- 
ernment and administration has been resorted to by the Secretary of 
War whenever the necessities of the military establishment have war- 
ranted such exercise of executive power, and his action in establish- 
ing them and prescribing rules for their government and control has 
been recognized by Congress in making appropriations for their sup- 
port and has been recognized by the courts and by other executive 
departments of the Government. The practice of establisliing such 
Government agencies and instrumentalities has existed for more than 
a century. Held, therefore, that it is within the authority of the 
Secretary of War to authorize the establishment of a laundry at a 
military post and to prescribe regulations for its admmistration and 
control.^ G. 18221^, Sept. 8, 1906. 

I B. Wlien the post exchange (then called canteen) was of a pri- 
vate character, it was held that stoppages of pay could not be made 
to reimburse losses of canteen funds; and at that tune the Treasury 
Department also held that canteens were taxable by the Government. 
Subsequently (in 1897) the Treasuiy Department held that post 
exchanges as then organized under the orders of the War Department 

1 Pursuant to the above recommendation, G. 0. 159, W. D., Sept. 15, 1906 (par. 
351 A. R. 1910), established post laundries and made provision for the collection of 
indebtedness due them from enlisted men. See also par. 1, G. O. 253, W. D., Dec. 
27, 1907, and the cun-ent acts of appropriation for the support of the Army relative 
to competition of post laundries with private establishments for doing laundry work. 
Current acts of appropriation now provide "for the construction, operation, and main- 
tenance of laundries m Army posts in the United States and in its island possessions." 



GOVERNMENT AGENCIES I C. 637 

were Government instrumentalities or agencies and were therefore 
not taxable under the internal revenue laws.^ Now the funds of the 
post exchange are moneys used in carrj^ing on this public agency, 
and the Government has a right to protect its instrumentalities — the 
establishments through which it carries on public business. Held, 
therefore, that stoppages against the pay of officers and enlisted men, 
whether on the active or retired list, may legally be made to reim- 
burse the post-exchange fund on account of losses for wliich such 
officers and enlisted men are responsible, and in case of a deceased 
officer or soldier the amount due the post exchange may be deducted 
from the paj^ and allowances due the estate of the deceased. C. 3171, 
June 7, 1897: 7186, Oct. 19, 1899; 12195, Mar. 12, 1902: 13104, Auq. 
U, 1902; 16714, Jan. 18, 1904; 19112, Jan. 2, 1907; 26161, Apr. 3, 
1911. As company, hospital, and regimental funds are also Govern- 
ment agencies, the pay of officers and soldiers may be stopped for 
indebtedness due them. C. 3171, June 7, 1897; 7186, Oct. 19, 1899. 
As the pay of an officer or soldier or employee may be stopped to 
pay an indebtedness due the United States, it may with equal legality 
and propriety be stopped to pay an indebtedness due to a Govern- 
ment agency or instrumentalitv whicli has been established by proper 
legislative or executive authority. C. 18224, Sept. 8, 1906. 

I C. The pay of an enlisted man whicli has been turned over to his 
company commander at the payment of the company because the 
soldier was absent from the pay table continues to be Government 
funds until it reaches the hands of the soldier unless some act of the 
soldier, such, for instance, as a request to the company commander 
in respect to the disposition of the whole or a part of his pay, operates 
as a technical reduction to possession. In the event of such an act 
such portion as the soldier should request the company commander 
to pay to creditors would be regarded as having been reduced to pos- 
session and might be paid in accordance with the soldier's request, 
and if the soldier has deserted the balance should be treated as the 
effects of a deserter, provided the soldier's request was that the 
balance be held as a deposit subject to the soldier's order. But where 
there is a well-established practice to collect at the pay table sums 
due to the post exchange, the company fund and other Government 
instrumentahties, such collections being made at the instant of 
payment when the soldier is present to receive his pay, a correspond- 
ing deduction should be made at the same instant in a case where 
the money due the soldier is handed to his company commander. 
Such a well-established custom may be regarded as a request by the 
soldier to pay the dues estabhshed by custom. Therefore held that 
the total amount due a post exchange, company fund or other Gov- 
ernment instrumentality, and, according to the established custom 
payable to those instrumentalities on the receipt of pay from the 
paymaster, should be considered by reason of such custom as tech- 
nically reduced to possession, and paid to the creditors in conformity 
to such custom, ancl the balance, not having been reduced to possession 
either actually or technically, should be considered as retaining the 
character of public funds and returned to the paymaster. C. 12227, 
Feb. 12, 1907, and Oct 12, 1909. 

' The same conclusion waa reached in Dugan v. United States (34 Ct. Cls., 458). 



638 GOVERNMENT AGENCIES I D 1. 

I D 1. Post exchange, company, hospital, bakery, etc., funds are 
quasi pubHc funds, i. e., funds used to carry on pubHc agencies or 
instrumentaHties of the Government, losses of which can be reim- 
bursed from stoppages of pay of the officer or soldier responsible 
therefor. From this it follows that the liability of the responsible 
officer or soldier is not that of a bailee without compensation, but of 
an official charged with the custody of funds in a public capacity 
devolving an official duty and a material trust, in the discharge of 
which a greater degree of care is required than in the case of a gratui- 
tous bailment. C. 13597, Nov. 24, 1902; 13867, Jan. 2, 1903; U575, 
May 1, 1903; 16065, Mar. 24, 1904; 25552, Sept. 11, 1909. So 
where the officer in charge of a post exchange, in conveying the funds 
of the exchange from the post to a bank in town for deposit, placed 
them in a package inside of the breast of his blouse which was without 
pockets, and the package slipped down and was lost, held that the 
officer had not used due care and should be charged with the amount 
lost. P. 54, 41 ) June 7, 1892. So where a post exchange officer 
placed in a sack a sum amounting to over $1,600 for deposit in a bank 
at a distant point, and without properly sealing ana stamping the 
sack, delivered it to an enlisted man, who in turn delivered it to a 
private stage company, which was not prepared to properly guard 
and protect a package of such value, and the stage line delivered it 
to the Wells-Fargo Express Co., which latter company delivered the 
package to the bank, where it was found that there was a hole in the 
sack and the original sum was short by over $500, lield that tlie ex- 
change officer was guUty of carelessness and should be held for the 
loss. C. 19112, Feb. 2, 1906. Where an officer stationed in the 
island of Mindanao kept his company fund in a wooden box made of 
inch lumber bound with kon, the box being securely bolted to the 
house and locked with a Yale lock, and it appeared that other officers 
had kept then- private funds in the box, lield that the fact that the 
officer could have used the safe of the post quartermaster in which to 
deposit his company fund, but did not do so because the deposit of 
the funds in that place would subject him to more or less delay in 
handling the funds, did not necessarily constitute evidence of proper 
lack of care. G. 20003, Oct. 2, 1906. Wliere a company commander 
placed over $600 of his company ftind and over $450 of his private 
funds in a steel box of |-inch steel plates, which was placed in his 
company quarters at Camp Bumpus, Leyte, P. I., and fastened to the 
floor by screws from the inside of the box so that they could be reached 
only after the box had been opened, and during the absence of the 
officer from his quarters about 6 p. m. the box was broken into by 
means of a hatchet and the contents stolen, lield that the officer should 
not be held responsible for the loss of the funds. C. 25552, Sept. 11, 
1909. A company was to leave the next day for another station and 
a bill for company supplies was to be paid, and an apparently entirely 
reliable noncommissioned officer whose duties as acting quarter- 
master sergeant naturally pointed him out for the work was given 
$50 by the company commander to pay a creditor, and the noncom- 
missioned officer disappeared with the money, and it appeared the 
noncommissioned officer at the time of his desertion had a deposit of 
$50, about $36 of pay due him, an undrawn clothing balance of several 



GOVERNMENT AGENCIES I D 1. 639 

dollars, and the prospect of his discharge in four months with mileage 
from San Francisco to New York, tield that as in the conduct of busi- 
ness it is absolutely necessary that certain persons be trusted, and 
there appeared to be ever}'" reason to trust the noncommissioned ojficer 
in the case, the officer was without negligence. C. 16065, Mar. 2^, 
1904- But where there was no urgent haste about the payment of 
the bUl, and the sum of $115 was intrusted by the company com- 
mander to a sergeant to pay a bill against the company fund, and the 
sergeant disappeared with the money, and it appeared there was a 
month's pay due the sergeant, with mileage from San Francisco to 
Washington, and a probable small balance on his clo tiling account, 
the two latter items, however, not being due for about 18 months, 
held that the facts were not sufficient to justify the release of the 
company commander from responsibility. C. 18898, Dec. 8, 1905. 
Wliere the officer in charge of a post exchange at a post adjoining a 
city, having in his hands for deposit in bank about $1,000 of post 
exchange funds, instead of personally attending to tlie deposit, sent 
in to the bank with the funds the post exchange steward, who appro- 
priated to his own use a portion of the amount and did not return 
to the post tOI arrested by the civil authorities — lield that the officer 
had not taken the degree of care properly required of him, and was 
responsible for the amountlost. P. 64, 138, Mar. 8, 1894; C. 13867, Jan. 
2, 1903. And where the company commander was sick in his quarters 
and the only other officeronduty with the company was officer of the day, 
and it was necessary to obtain change for use on payday, and the com- 
pany commander intrusted to his first sergeant a check for $75, with 
which to obtain change at a town 7 miles away, and the first sergeant 
disappeared with the money, held that as in the conduct of all business 
operations, there must be necessarily a certain degree of trust shown 
in the handling of funds, and the company commander had no reason 
to ])e on his guard against the theft or desertion of the first sergeant, 
he should not be held responsible for the loss to the company fund. 
C. 29057, Oct. 3, 1911. The / ' b akery fund " is a Government instru- 
mentality. Not being public money the officer in charge may be 
relieved by competent authority from responsibihty for a loss. There- 
fore, where a medical officer detailed as post treasurer places the 
])akeiy fund, with the consent of the senior medical officer of the post, 
for safe keeping in the safe pro^dded by the Government at the hos- 
pital for the use of the medical officer in charge, and in which were 
kept the hospital fund and other valuables, the combination of the 
lock being known only to the senior medical officer and the post 
treasurer and the surgeon general's office, and while tlie door of the 
safe had been carelessly left open by the senior medical officer the 
baker}'- fund was stolen, Jield that the post treasurer was not required 
to keep the bakery fund in a bank, and that the placing of it in the safe 
was, under the circumstances of the case, a proper care of the fund. 
Held further that the fact that the post treasurer had replaced the 
baker}^ fund from his private funds immediately after the loss 
occurred, did not prevent him from subsequently requesting relief. 
C. 15609, Dec. 15, 1903. The officer in charge of athletics and 
amusements at a post, for his own convenience, sent a private who 
was his assistant to the post exchange to cash a voucher for $18.50. 



640 GOVERNMENT AGENCIES I D 2. 

The soldier cashed the voucher and deserted with the money. Held 
that as between the officer and the post exchange the loss should be 
borne by the officer. 0. 28866, Aug. 25, 1911. 

A post exchange was entered and robbed of a sum of money, con- 
sisting in part of that day's receipts and in part of a small and reason- 
able sum left by the officer in charge with the exchange steward, to 
make change. Under paragraph 337, Army Regulations (par. 4, 
G. O. 46, A. G. O., 1895), the officer in charge is not responsible for the 
day's receipts till turned over to him by the steward on the following 
morning. Held, in the absence of any evidence of negligence or want 
of precaution on his part, that the officer was not legally liable for the 
amount of the loss. P. 58, 437, Mar. 28, 1893. 

I D 2. Paragi-aph 318, Army Regulations of 1908 (321 of 1910), 
provided that: ''In case of loss of regimental, bakery, exchange, com- 
pany, or mess funds, the circumstances will be carefully investigated 
and reported by the post council, with recommendation as to respon- 
sibility, for the decision of the department commander." Where the 
loss occurred in a post exchange on Alcatraz Island, held that as the 
post on that island is not within the command of the department com- 
mander, the report should be forwarded by the post commander to 
The Adjutant General of the Army. C. 2^380, Feh. 6, 1909. 

I D 3. Paragraph 317, Army Regulations, 1904 (321 of 1910), in 
? elation to the loss of regimental, exchange, company, or mess funds 
does not provide for an appeal from the decision of the department 
commander, but where an officer has been held responsible by 
the decision of the department commander for the loss of funds and 
does not replace the funds of his own motion, the question of stoppage 
of his pay arises and the Secretary of War, before ordering a stoppage 
of his pay under section 1766, R. S., as amended by the act of July 16, 
1892 (27 Stat. 177), may reexamine the case to determine whether the 
officer should be held responsible. 0. 20003, July 5, 1906. 

I D 4. An officer at the time of his death was accountable for $360 
company fund. A board of survey reported that he had left in lieu 
of the money an unindorsed Government check for that amount, pay- 
able to his order and purporting to be for pay due him. It thus 
appeared that the officer owed the company fund $360, and that the 
Government owed him the same amount for salary, the check not hav- 
ing been presented and paid. Advised, therefore, that as an officer's 
pay may legally be stopped to reimburse the company fund, $360 be 
stopped against the pay due the deceased officer, and that the check 
referred to be returned to the drawer to be cancelled. G. 7957, Apr. 
7, 1900. 

I E. Paragraph 593, Army Regulations, 1904 (603 of 1910), pro- 
vided that "Officers or agents in the military service will not purchase 
supplies for the Government from any other person in the military 
service, nor contract with any such person to furnish supplies or service 
to the Government, nor make any Government purchase or contract 
in which such persons shall be aclmitted to share or receive benefit." 
Held that the prohibition of the paragraph is directed at persons in 
the military service, and as a post exchange is not a person, but a form 
of governmental agency, the paragraph does not apply to a post ex- 
change. Held further that it would not be unlawful for an exchange 
to repair a typewriter for the Signal Department, charging therefor a 



GOVERNMENT AGENCIES I F. 641 

reasonable compensation. C. 17927, June 15, 1905. Also lield that 
a post exchange laundry could do laundry work for the Government. 
C. 18156, Oct. 31, 1905. 

I F. A company of a volunteer regiment operated an exchange. 
After the muster out of the company a debtor paid to one of the 
officers of the company his indebtedness to the exchange. Held that 
the profits from the post exchange are considered as belonging to the 
organization as such and not to the individual enlisted men composing 
the organization, and therefore as the company is no longer in exist- 
ence no attempt should be made to distribute the money among the 
former members of the company. However, as the profits arose from 
the savings of enlisted men they should be apphed to the benefit of 
enUsted men, and there would be no legal objection to applying them 
to the company fund or funds of one or more companies as may be 
thought to best subserve the interests of the Government. C. 11089, 
Aug. 29, 1901; 10917, Jan. 25, 1902. So held where an exchange was 
operated by a large detachment of recruits who were ordered away, 
leaving a surplus in the hands of the exchange officer. C. 13625, 
Nov. 12, 1902. So where a volunteer regiment was mustered out, 
leaving in possession of the colonel $145 belonging to the regimental 
fund, recommended that tliis sum be distributed among new infantry 
regiments being organized for use as a part of their regimental funds. 
C. 13616, Nov. 12, 1902. 

Post exchanges are by their nature intended to be continuous 
in their operation, new organizations taking membersliip in the 
exchange as the old ones leave, but where an exchange was entirely 
closed out and a new one came into existence entirety distinct and 
separate from the old one, and upon closing out the affairs of the old 
exchange there was a balance of some $75 to be declared as dividends 
and it appeared that the new exchange h»d voluntarily assumed cer- 
tain debts of the old exchange, the total being unknown, and it 
appeared that a period of four years had elapsed since the old 
exchange was closed out, Tield that it would be proper to turn over 
to the new exchange the balance belonging to the old one. C. 17463, 
Feb. 8, 1905. 

A debt from a deceased member of a hospital detachment which 
belonged to the post exchange was assigned to the surgeon in com- 
mand of the detachment as a part of the detachment dividend. Sub- 
sequently, and before the debt could be collected from the estate of 
the deceased, the station was abandoned and the hospital detachment 
ceased to exist, the various members being sent to clifferent stations. 
Held that as hospital detachments do not constitute a permanent 
organization like companies a proper disposition to make of the 
deot would be to turn it over to the chief surgeon of the department 
to be applied by him to a proper beneficiary. C. 19321, Mar. 10, 
1906. 

Upon the return of the Army of Cuban Pacification to the United 
States there remained unexpended the sum of $500 in a prison mess 
fund. This fund had accumulated from savings on the rations of 
military prisoners brought from all parts of the island of Cuba. 
Recommended that this sum be distributed between "the mihtary 
prisons at Fort Jay and Fort Leavenworth. C. 24686, Mar. 23, 1909. 

93673°— 17 41 



642 GOVERNMENT AGENCIES II A 1. 

II A 1. The post exchange was not estabhshed by Congress, but is 
maintained under special regulations prepared by the War Depart- 
ment. It is a Government instrumentality ^ and has been recog- 

' In the case of Thomas B. Dugan t;. U. S., decided June 5, 1899 (34 Ct. Cla. 458,) the 
court said: "Under Post Exchange Regulations adopted by the War Department, 
and published by General Orders, No. 46, Headquarters of the Army, July 25, 1895, 
post exchanges were established and the commanders at every post thereby required 
to institute the same; to set apart, rent, or construct as therein provided a suitable 
building or rooms therefor and to detail an officer to be designated as 'officer in charge ' 
to manage the business and affairs of such exchanges imder the superintendence of a 
council consisting of three officers. * * * 

"Such exchanges were first organized under General Order No. 10, Adjutant 
General's Office, February 1, 1889, and as thus organized superseded the 'canteens' 
which were organizations in the nature of social clubs, voluntarily formed by the 
officers of a regiment or other command with their own money and conducted inde- 
pendently of tlieir official duties, as we are advised. 

"These social clubs, known as 'canteens,' were organized after the office of sutler 
in the Army had b(;en abolished by the act of July 28, 1866 (14 Stat.L. 366). They 
were held liable to internal-revenue tax the same as social clubs in cities selling 
manufactured tobacco, cigars, and liquors to their members. 

"By the act of January 28, 1893 (27 Stat. L. 426; 2 Supp. Rev. Stats. 76), post 
traderships in connection with the military service were also abolished, and follow- 
ing this came the establishment of 'post exchanges' by the regulations therefor, 
published in 1895, as aforesaid. * * * 

"On the application of the claimant (Post Exchange Officer at Jefferson Barracks, 
Mo.), * * * the Commissioner of Internal Revenue, imder Revised Statutes, 
section 3426, as amended by section 17 of the act of March 1, 1879 (20 Stat. L. 349; 
1 Supp. Rev. Stat. 241), made allowances or awards in his favor for the repayment 
to him of the special tax so paid, and the Commissioner certified the same for payment. 
* * * 

"The decision of the Commissioner presumably based on 'satisfactory evidence of 
the facts' was that the post exchanges so established were 'no longer the mere social 
clubs that the old canteens were,' but that they were 'brought under the complete 
control of the Secretary of War by the regulations as governmental agencies' and 
for that reason the special tax was iiot required to be paid by post exchanges as 'dealers 
in oleomargarine, or as liquor dealers, or malt liquor dealers.' * * * 

"True, such exchanges have not been authorized by direct legislation, but the 
President has the undoubted power to establish rules and regulations for the govern- 
ment of the Army, and whatever rules and orders are promulgated through the Secre- 
tary of War 'must be received as the acts of the Executive and as such be binding 
upon all within the sphere of his legal and constitutional authority,' as was held by 
the Supreme Court in the case of the United Statest;. Eliason (16 Peters, 291). * * * 

"If, therefore, in the judgment and wisdom of the Executive the establishment of 
such post exchanges and their management by the officers of the Army are essential 
to the welfare, good order, and discipline of the troops stationed at such Army posts, 
as seems evident from the exchange regulations thus promulgated, then we think 
such exchanges, though conducted without financial liability to the Government, 
are in (heir creation and management, governmental agencies, established for the 
purpose as the regulations provide of supplying 'the troops at reasonable prices with 
the articles or ordinary use, wear, and consumption not supplied by the Government 
and to afford them means of rational recreation and amusement,' and also 'through 
exchange profits, to provide the means for improving the messes. ' * * * 

"Thus it will be seen that the establishment, maintenance, management, and 
closing up of such exchanges are vuider the control of and subject to the regulations of 
the War Department as governmental agencies for the purpose aforesaid. * * * 

"The Government, through its officers, by authority of the regulations not only 
establishes and maintains such exchanges, but receives, handles, and disburses the 
funds in connection therewith, and whatever profit accrues is paid over to and held 
by the officer in command of such organizations as a company fiuid. 

"It has never been the policy of the Government to tax its own enterprises or its 
own manner or method of doing business; and inasmuch as post exchanges are estab- 
lished and maintained by it for the mental and physical betterment of its troops in 
garrisons and posts, with resulting if not immediate benefit to itself, we think such 
exchanges are exempt from the payment of special tax for the sale of such articles 
as the regulations permit. * * * " 



GOVERNMENT AGENCIES II A 2. 643 

iiized by Congress, as for instance, in the act of June 13, 1890 (26 Stat. 
154), which prohibits the sale of intoxicating liquors in post exchanges 
in certam States, and the act of July 16, 1892 (27 Stat. 178), which 
authorizes the use by post exchanges of public buildings and public 
transportation when not required for other purposes. Congress has 
repeatedly appropriated money for the construction, equipment, and 
maintenance of suitable buildings at military posts and stations for 
the conduct of post exchanges. C. 5394, ^ov. 30, 1890; 12194, ^ar. 
12, 1902; 13104, Aug. 14, 1902; 15714, Jan. 18, 1904; 19268, Mar. 1, 
i906. 

II A 2. A post exchange is not a corporation. It is a cooperative 
association of organizations, &c., which have paid for their shares 
in the exchange. Articles donated to the exchange are donated to 
the association and such articles should be considered" as part of the 
assets of the exchange, to be turned over, or accounted for, by its 
members to their successors. P. 65, 127, May 26, 1894. A. post 
exchange is a voluntary unincorporated association between various 
militaiy organizations. It is joint venture to form a kind of coopera- 
tive store. G. 27964, Mar. 6, 1911. 

II B 1. Held that there is no legal objection to an allowance to the 
post-exchange officer out of the exchange funds, to offset in a measure 
the pecuniary risk which he is obliged to take. G. 3108, Apr. 15, 1897. 

II B 2. As a post exchange is not a corporation but a voluntaiy 
association of organizations and the business is carried on by an officer 
of the Army detailed for that purpose who has full charge and repre- 
sents the exchange in all its transactions, held that litigation on behalf 
of the post exchange should be in the name of the exchange officer as 
exchange officer and on behalf of the exchange.* G. 19268, Mar. 1, 
1906. 

II B 3. As a post exchange is an instrumentality of the Govern- 
ment, the duties imposed on an officer in the management of the 
affairs of the exchange are as binding upon him as is any other duty 
to wliich he may be detailed under competent militaiy authority. 
Therefore, if in the performance of his duties as an exchange officer 
it is necessary for him to have legal advice, he may properly apply 
under paragraph 1005, Army Regulations (1013 of 1910), for such 
legal advice, and in a proper case request v/ill be made upon the 
Department of Justice for the assistance of the proper United States 
attorney. So, held, where a post exchange contemplated bringing 
an action against a corporation for the price of certain articles sold 
to the exchange. G. 19268, Mar. 1, 1906. So, where a so-caUed 
company exchange was carried on at a post by the consent of the 
commanding officer, although such exchange was not authorized by 
law or regidations, and an action was brought agamst individual 
officers for the debts of the concern, held that, owing to the fact that 
the exchange had existed by the authority of the commanding officer 
and owing to other peculiar circumstances of the case, it would be 
proper for the officers sued to request to be provided by the Govern- 
ment with, counsel. G. 20279, Apr. 20, 1907. 

II B 4. Paragraph 3, page 8, General Orders, 176, War Department, 
August 14, 1909, which publishes the regulations for the post exchange, 

' In the case of Dugan v. U. S. (34 Ct. Cls. 458) the action was brought in the name 
of the exchange officer. 



644 GOVERNMENT AGENCIES II B 5. 

provides: "The management of the affairs of the exchange will be 
conducted by an officer designated 'Exchange Officer/ selected and 
detailed by the commanding officer. The exchange officer is in charge 
of the exchange and is responsible for its management." Held, that 
the above language did not necessarily make an exchange officer per- 
sonally responsible to an unpaid creditor of the exchange, the cred- 
itor not having been paid at the time the affairs of the exchange 
were closed. An exchange officer might become personally respon- 
sible to a creditor of an exchange if he assumed personal responsibil- 
ity for the debt, or by his conduct has caused the creditor to lose his 
right to recover from the exchange. O. 2796 J,., Mar. 6, 1911. 

II B 5. A post-exchange officer, having been charged with embez- 
zlement of the exchange funds, made good the shortage. Having 
been acquitted of the charge, he requested that the amount paid by 
him to make good the shortage be refunded. Held, that the findings 
of the court-martial had solely to do with the officer's culpability 
from the point of view of discipline, that the acquittal did not relieve 
him from financial responsibility, and that the amount paid by him to 
make good the shortage should not be refunded. G. 179If.It., May 5, 
1905. 

II C i. As the doing of a general banking business is not among 
the purposes for which a post exchange is established, held, that it 
would not be authorized to accept from a soldier a deposit for safe- 
keeping. G. 11155, Aug. SI, 1901. 

II C 2. Where it was proposed at a military post to authorize the 
post exchange to collect funds accruing from a tax on dogs in the 
post to be levied by the post commander, the purpose being to limit 
the number of dogs at the post, lield that as such a tax constituted 
an important restriction upon the military and police administration 
of the post and does not come clearly within the scope and meaning 
of the orders and regulations governing the sources of revenue that 
post exchanges may avail themselves of, recommended that the pro- 
posed tax be not authorized. G. 27317, Sevt. 30, 1910. 

II D 1 . It is well settled that a reasonable credit may be given to 
an officer by the post exchange for purchases made. G. 20869, Jan. 
11, 1907. 

II D 2. An indebtedness from a soldier may be collected on the 
pay rolls or final statement notwithstanding the fact that such 
mdebtedness may have resulted from giving the soldier a credit with 
the exchange in excess of that authorized by the regulations. G. 
10298, Mar. 18, 1911. And where a post exchange suffered a loss by 
reason of the fact that an officer failed to charge against a soldier on 
the pay rolls a debt, owing the exchange by the soldier, held that the 
officer should make good the loss to the post exchange notwithstand- 
ing that the indebtedness of the soldier to the post exchange was in 
excess of the credit authorized by the exchange regulations, G 1^828, 
Dec. 26, 1903. 

II E 1. As the membership of a post exchange consists of organi- 
zations, companies or detachments of enlisted men, and as officers 
are not eligible to membership, held, that the officers of a post at 
which a post exchange is located are not Hable for its debts. G. 
19633, Jan. 7, 1911. 

II F. Where an exchange has suffered a loss, all officers responsible 
for such loss should be held for it. For instance, where losses extend- 



GOVERNMENT AGENCIES II G, 645 

ing over a period of two years were caused by neglect and mismanage- 
ment, held, that the post exchange council as well as the exchange 
officer should be held responsible for it. C. 26516, Apr. 14, 1910. 
So, held, where for six months the exchange officer and post exchange 
council failed to take steps to compel payment of an indebtedness of 
$54.39 owing by an officer and the officer resigned from the Army 
without having paid the debt. C. 20869, Jan. 11, 1907. 

II G. The Post Exchange Regulations of May 1, 1899, provided 
that the post commander "when sufficient exchange funds are avail- 
able may cause a suitable building to be erected for the purpose, and 
if a temporary building, or if constructed wholly or in part by the labor 
of troops, use of the necessary teams and such tools, window sash, 
doors, and other material as can be spared by the Quartermaster's 
Department is authorized, but no permanent structure will be erected 
on a reservation without first obtaining the authority of the Secretary 
of War. Expenses of repairs or alterations of public buildings for 
use of the excliange will be borne by the exchange when they can not 
be provided for by the Quartermaster's Department." Wliere a post 
excliange building at Fort Egbert, Alaska, was erected by authority 
of the Secretary of War without cost to the Government, except that 
the doors, windows, nails, and chimney tiles were furnished by the 
Quartermaster's Department, held, that the building did not become 
the property of the Government by reason of furnishing the doors, etc., 
but became an asset of the exchange and should be so treated, subject 
to the claim of the Government for the doors, etc. C. 10034, Oct. 15, 
1901. 

Where a building was erected on a reservation without the authority 
of the Secretary of War as an addition to a pubhc building which had 
been set aside for the use of the post exchange, held, that the addition 
so erected without authority became the property of the United 
States, a 10305, May 14, 1901. 

Where a building was erected by a post exchange under a license by 
the Secretary of War, held, that if the license was revoked and the 
building could be removed so as to realize an amount in excess of the 
damage to the reservation and other property of the United States, 
the removal of the building should be permitted, but if tliis could not 
be done the building should be held to be the property of the United 
States. 0. 10305, May 14, 1901. 

II I 1. In 1896 a dividend was due the organizations constitut- 
ing a post exchange, but was not paid because the bank in which 
the money was deposited suspended payment. In 1903 the bank 
resumed payment and a new certificate of deposit was issued in favor 
of tlie officer who was exchange officer at the date of the bank's 
suspension. Held that as the companies were continuing organi- 
zations the dividend due them in 1896 should be paid to them. 
0. 14928, July 8, 1903. So, in 1900, the post exchange at Ponce, 
P. R., was indebted to the post exchange at San Juan, P. R., but 
failed to pay the debt and the organizations at both stations were 
ordered away. In 1903 it was held that as a company fund is a con- 
tinuing fund and does not depend upon the personnel of the company, 
and as it belongs, not to the individual members of the company 
but to the company as a unit, the companies constituting the Ponce 
exchange in 1900 should pay to the organizations comprising the 



646 GOVEEiSTMENT AGENCIES II I 2. 

San Juan exchange in 1900 the amount of the indebtedness of the 
Ponce exchange at that time. C. 15428, Oct. 27, 1903. 

Where a post exchange officer was required over his protest to pay 
out of his private funds for certain supphes ordered furnislied and 
used by the post exchange, and the organizations constituting the 
exchange had been ordered to another station and the exchange was 
dissolved, Jield that as an exchange is a voluntary unincorporated 
association between various military organizations and constitutes 
a joint venture to form a kind of cooperative store, the various 
organizations comprising it are hable to third parties for obligations 
incurred on account of the joint business. Ordinarily the liabilities 
incurred on the joint account are extinguished by the post exchange 
itself, but if in a particular case, such as the present, it is impracticable 
to have the exchange pay the obh^ation, the several organizations 
comprising it would still remain liable as individual partners remain 
liabfe for partnership debts after the dissolution of a partnership. 
Therefore recommended that the post-exchange officer be reimbursed 
for his involuntary payment by the several organizations comprising 
the exchange at the time the indebtedness was incurred. C. 27964, 
Mar. 6, 1911, and Oct. 3,1911. 

II I 2, Prior to the admission of a new organization to an estab- 
lished post exchange, a board of officers, as required by exchange 
regulations, made an examination of the affairs of the exchange and 
adjusted the accounts and values. No appeal was taken from the 
findings of the board to the department commander. Subsequently 
it was discovered that some of the bills due the exchange were value- 
less and some bills due by the exchange, the existence of which was 
not known before, were presented for payment. Held, that questions 
as to the liability of members of an exchange should be considered as 
finally determined by the action provided by exchange regulations 
except in cases where, after a settlement, fraud is alleged or facts are 
discovered bearing on the value of the membership in the exchange 
wMch were not known at the time the values were adjusted and 
which with the exercise of due care and dihgence could not have 
been known to those having the adjustment in charge. In such an 
exceptional case it would be proper for the department commander 
to appoint a board to investigate the facts and recommend equitable 
settlement. C. 19178, Feh. 9, 1906. Held, further that it was the 
intent of the exchange regulations that the action of the department 
commander should be final and that such cases should not be for- 
warded to higher authority. C. 19248, Mar. 6, 1906. 

II I 3. A hospital corps detachment bought into the post exchange 
on a basis of 12 men in the detachment. The number of men having 
been reduced to 6 the dividends of the exchange were distiibuted to 
the detachment on the basis of 6. Held, that although membership 
in an excliange is by organization, the exchange regulations take 
into consideration the size of the organization, the size on joiiiing 
being taken from the number of men present at the time of joining, 
whereas the dividends are calculated on the basis of the whole number 
of men uho have been present with the organization during the period 
covered by the distribution. Therefore the method of distribution 
on the basis of six was in accordance with the exchange regulations. 
a 20043, July 11, 1906. 



GOVERNMENT AGENCIES II I 4. ' 647 

II I 4. Membership in an, exchange is not obhgatory on the units 
which go to form the garrison. C. 19248, Mar. 6, 1906. 

II I 5. The enlisted men detailed for a course of instruction at the 
Artilleiy School, which course lasted practically during the entire 
year, during that time occupied separate quarters and had a separate 
mess. Held, that they constituted an organization or detachment 
competent to acquire membership in a post exchange. C. 29351, 
Jan. 4, 1912. . 

II J 1 . As post exchanges are created by orders there is no legal 
objection to the estabhshment of one exchange with several branches 
at a mihtaiy post, or to the estabhshment of several independent 
exchanges at the same post, as, for instance, several regimental ex- 
changes. C. 27345, Oct. 11, 1910. 

II J 2. A soldier's final statements which had been transferred to 
a post exchange were cashed by a paymaster. It was subsequently 
discovered that the paymaster had overpaid the post exchange. 
By the time the discovery was made the membership of the post 
exchange had changed. Held, that as the post exchange is an 
instrumentality of the Government and a part of the military system 
of administration, the accounts between the paymaster and the 
post exchange could be ordered to be readjusted. C. 24167, Dec. 
2, 1908. 

II J 3. Paragraph 318, Army Regulations, 1910, provides that 
the proceedings of the post exchange council will be submitted to 
the post or other commander, who will sign his approval or objec- 
tion m the council book, and that should the post or other commander 
disapprove the proceedings, and the council, after reconsideration, 
adhere to its conclusions, a copy of the proceedings will be sent by 
the commanding officer to the division commander, whose decision 
thereon will be final. Held, that the "proceedmgs" referred to by 
this paragraph is the record of the action taken by a majority of 
the council, and it is upon this record that the post or other com- 
mander must note his approval or disapproval, as the case may be. 
While there can be no objection to a minority report being appended 
to the proceedings of the council, such minority report, however, 
represents merely the personal views of the minority and is not 
the "proceedings" to be approved or disapproved. Therefore where 
the action taken by the post commander consisted in the apj^roval 
of the minority report, lield that it did not constitute a compliance 
with the above regulations.^ C. 29268, Nov. 28, 1911. 

II J 4. At the time a bank went into the hands of a receiver it 
had funds on deposit in the name of the regimental exchange officer. 
Before a dividend was declared this post exchange officer died. 
Held, that it would be proper for the regimental adjutant to receive 
and receipt for the dividends. C. 16517, June 28, 1904- 

II J 5. Post exchanges having been recognized by statute as 
Government agencies a bureau of the Government may legally 
transfer property to the post exchange at cost price. O. 20993, 
Jan. 26, 1907. 

II J 6. The cost of telegraphic messages over the lines of com- 
mercial companies on post excliange business does not constitute a 
lawful charge against the appropriations for tlie payment of telegrams 

^ See Retirement. 



648 GOVERNMENT AGENCIES IT J 7. 

on public business, but as the post exchange is an instrumentality 
of the Government, such messages should be transmitted free over 
lines owned and operated by the War Department. C. 19479, 
Mar. 26, 1910.^ 

II J 7. A discharged soldier transferred his final statements to a 
post exchange officer, who thereupon advanced him from the post 
exchange funds $75 and forwarded the statements to a paymaster. 
Upon receipt from the paymaster of a check for $102.79 in payment 
of the final statements, the post exchange officer remitted $27.50 to 
the discharged soldier, retaining 29 cents to cover postage, registra- 
tion fee, and cost of money order. Five months later the paymaster 
discovered that he had made an overpayment through his own error 
in computation, and called upon the post exchange to reimburse liim 
on the ground that it had received pubhc money to which it was not 
entitled. The post exchange council disallowed the claim, setting 
forth in its proceedings that ' ' the post exchange is expressly debarred 
from making any profit by these transactions, exchange officers being 
required to certify on each of the statements that they were cashed as 
a matter of accommodation to the soldier and without profit to the 
post exchange; that in consequence it has been the custom to make an 
advance or partial payment to tlie men and upon receipt of the pay- 
master's check to make final settlement; that the Government does 
not furnish the exchange officer with any facilities for making com- 
putations in these cases, and hence he is obliged to regard tlie pay- 
master's check in settlement as officially accurate and final." Held, 
that the loss should not fall on the post exchange, as under the cir- 
cumstances it acted simply as the agency through which payment was 
made by the paymaster to the soldier and was in no way responsible 
for the error. The soldier and not the post exchange was the debtor 
to whom the paymaster should look for reimbursement for the over- 
payment. The error having been made by the paymaster the loss 
should fall on him under Army Regulations, 654 (665 of 1910). 
C. 7589, Jan. 28, 1900. 

IIJ 8. The post exchange is a part of the administrative machinery 
of the Army established by Army Regulations, which have the force of 
law. A fraud committed by the steward of a post exchange in its 
management is therefore clearly a mihtary offense. C. 5256, Nov. 15, 
1898. 

IIJ 9. Held, that the appropriation in an Army appropriation act, 
"for fuel and fights for enhsted men," included the fuel and fights 
required at a canteen,* since thus used they are for "enhsted men" 
almost if not quite as much as when used in their places of messing 
and sleeping. But as the act authorizes a sale of articles for fuel or 
light for cash to "officers" only, a sale could not be made to a canteen. 
Even though the official in charge of a canteen is a commissioned offi- 
cer, a sale to him of such material would not be for his use but for that 
of the canteen, and therefore unauthorized. P. 51, 289, Jan. 7, 1892. 

II J 10. Paragraph 1051, Army Regulations of 1904 (1060 of 1910), 
provided that the allowance of fuel to be issued to a post exchange 
should be such quantity as might be certified to by the officer in 
charge and approved by the commanding officer. Held, that the 

* See note to "Government Agencies and Instrumentalities," II A 1, for a descrip* 
tion of a "canteen." 



GOVEENMENT AGENCIES II J 11. 640 

regulation would apply to a post exchange which maintains a laundry 
as well as to one which does not. C. 21521, May 13, 1907. 

II J 11. Where a "volunteer band" was organized at a military 
post by soldiers voluntarily associating themselves for that purpose, 
the band not being one recognized by the statutes or regulations, but 
furnisliing martial music for the post, held that it would be proper to 
apply a portion of the profits of the post exchange for the support of 
the band. C. 14893, July 1, 1903. 

II J 12. A "volunteer band" is not entitled to share in the allots 
ment of 5 per cent of the net profits of a post exchange. C. 23870, 
May 24, 1911. 

III A 1. A debt due from an officer to the company on account of 
boarchng with the company is a debt to the company fund for whicli 
the officer's pay can be stopped. O. 21595, May 31, 1907. 

Ill A 2. A private laundry undertook to pay to a company fund a 
percentage of the profits on the laundry work of members of the 
company who patronized that laundry. Held, that the mere fact that 
the company fund received a profit from the laundry did not make a 
debt owing by a member of the company for washing, a debt to the 
company fund. C. 21595, May 31, 1907. 

Ill A 3. A sum of money was advanced from the company fund to 
several enlisted men to enable them to creditably represent their 
company and regiment at an atliletic meet. Held, that there was no 
warrant of law for the loaning of money for any purpose to enlisted 
men from the company fund. C. 23694, -^ug. 6, 1908. 

IIIBl. Paragraph 331, Army Regulations, 1901 (331 of 1910), 
provides that the company fund shall be disbursed by the company 
commander "solely for the benefit of the company." Held that 
under the above provision, it would be proper to purchase a typewriter 
for the use of the company if it was "solely for the benefit of the com- 
pany. "^ C. 15447, Nov. 3, 1903. Also a gardener or pool-room 
attendant might be paid from the conijiany fund for their services. 
C. 15447 , May 9, 1911. Also a filing cabinet or document fiJe wliich 
contained not only manuals, pamphlets and official books, but phono- 
graph disks for use in the company phonograph, provided such a cabi- 
net was deemed of sufficient benefit to the men of the company to war- 
rant purchase. C. 15447, July 7, 1911. Also the purchase of certain 
articles of furniture for the comfort and convenience of the men of the 
company. C. 25758, Nov. 6, 1909. But a room orderly could not 
properly be paid extra compensation out of the company fund, even 
though he was in charge of over $3,000 worth of Government property, 
as the custody of such property would be part of his military dutv. 
C. 15447, May 19, 1911. ' 

' Circular 6, War Department, Jan. 27, 1904, provides that "Tiie company fund is 
not intended for expenditure in the purchase of articles to facilitate the transaction of 
business in a company. On the contrary the legitimate and proper application of this 
fund is in supplementing the articles already furnished by the supply departments for 
the pur])ose of increasing the comfort, pleasure, contentment, mental and physical 
improvement of the organization. To accomplish this purpose, disbursements of com- 
pany fund are authorized; disbursements for all other puiposes are unauthorized. " 

Circular 56, War Department, Oct. 31, 1906. provides ''Circular, No. 6, War Depart- 
ment, Jan. 27, 1904, is construed as not prohibiting the purchase or repair of type- 
writing machines from the company fund, provided the officer responsible for expendi- 
tures from that fund decides that the same are made solely for the benefit of the com- 
pany and for the purpose of increasing the comfort, pleasure, and contentment of the 
enlisted men. " 



650 GOVERNMENT AGENCIES III B 2. 

Ill B 2. Such an organization as a company exchange is not recog- 
nized by regulations and has no official status as a government agency. 
It must be regarded as a civil association instituted for the purpose of 
trade and subject to all the rules and responsibilities which the laws 
attach to merchants whether they operate alone or as partners or 
members of a voluntary association. So where an exchange called a 
company exchange was run at a post by one of the companies by 
authority of the commanding officer, and it appeared that the ex- 
change was established by the company officers for the benefit of the 
company, and that none of the company fund was actually used in 
the operation of the exchange, although two small contributions to 
the company fund had been made from the profits of the exchange, 
Jield that the company fund would not be liable for the debts of the 
concern.! C. 20279, Sept. U, 1906. 

Ill B 3. Where a certificate of deposit respecting a dividend of a 
company from the profits of a post exchange was lost without the 
fault of any one, and the bank declined to pay the certificate unless 
a bond was given to secure it against loss, held that the expense of 
obtaining such a bond could properly be paid from the company fund. 
C. 14716, May 26, 1903. 

IV. At a certain post where a laundry was operated as a feature of 
the post exchange, a rule of the exchange required that a charge 
for washing should be made against each recruit at that station, 
whether he sent his clothes to be washed or not. Held that there was 
no authority by which an arbitrary charge could be made against a 
recruit for clothes not washed. C. 21900, Aug. 14, 1907; 23958, Oct. 
15, 1908. So, held, also, as to a company order that each inember of 
the company should pay the company one dollar per month for laun- 
dering his clothes, where a soldier did not have his clothes laundered 
by the company laundry. C. 22627, Jan. 29, 1908. 

V. A soldier on duty requiring him to bear his arms may do so, 
notwithstanding that a law of a State or Territory may prohibit the 
carrying of arms. This is on the ground that he is an instrumentality 
of the Government of the United States, and as such can not lawfully 
be interfered with by State, Territorial, or municipal regulations 
when performing his duties in the proper way. While en route under 
orders from one station to another with his arms he is on a duty 
requiring him to bear arms. If an unlawful attempt is made to 
interfere with such a soldier it would be his duty to resist it, using as 
much force as was necessary. C. 344^, Aug. 19, 1897, Sept. 25, 1897, 
and June 11, 1907. So where the rules established by a railroad 
company for the protection of the general traveling pui3lic required 
all passengers to ''break" their guns or leave them in the baggage 
car. held that to comply with such rules would be a violation of Army 
Regulations, and the War Department should decline to permit 
soldiers traveling on duty, and therefore acting as an instrumentality 
of the United States, to comply with such rules. ^ C. 344^, June 25, 
1907, and July 22, 1907. 

' G. O. 165 War Department, Oct. 1, 1906, prohibits the establishment of company 
exchanges or other undertakings not authorized by Army Rf gulations. 

^ The railroad company in the above case modified its rules so as to provide that the 
rule as to carrying arms should "not apply to United States soldiers or State militia 
traveling with arms under orders from competent military authority on any coaches 
or trains of the company," 



GOVERNMENT AGENCIES VI. 651 

VI. Medical practice by officers of the Medical Corps of the Army, 
outside of military posts, should conform to the laws of the State, 
but this is subject to the qualification that medical treatment of 
members of the Army on the active list, being an instrumentality of 
the United States Government, can not be controlled by State legis- 
lation, and may be furnished wherever the soldier may be stationed. 
Under paragraph 1451, Army Regulations (1496 of 1910), enlistedmen 
on the retired list are allowed medical attendance at the stations of 
medical officers only. By paragraph 14.50, Army Regulations (1495 
of 1910), medical officers on duty are required to attend officers and 
enlisted men and when practicable their families. Medical officers in 
their attendance upon the families "of officers and enlisted men, out- 
side of military posts, would have to comply with the State laws; 
otherwise such attendance would not be "practicable." So in the 
treatment of civilians not living on military reservations, the laws of 
the State would have to be complied with. C. 3270, June 10, 1897; 
20395, Sept. 18, 1906. 

VII. General Orders, No. 28, War Department, February 28, 1911, 
provided that "the establishment of company barber shops and of 
company billiard and pool tables, from which revenues may be 
derived, is authorized. All funds accruing therefrom will be ac- 
counted for as part of the company fund." C. £3694, June 27, 1911. 

VIII. A band fund which has been collected at a post for a volunteer 
band should be accounted for in the same way that regimental funds 
are accounted for. C. 23870, Sept. 16, 1910, and Jan. 11, 1912. 

IX. Wliere the effects of a deceased officer were turned over to a 
quartermaster for shipment to the legal representatives of the 
deceased, and while awaiting the necessary information as to the 
whereabouts of the representatives, the eii'ects, including cash and a 
paymaster's check, were stolen, held that as the property came into 
the custody of the quartermaster as part of his official duty, it 
devolved upon him to perform such duty without fault or negligence 
and with more than ordinary care. C. 95Jf.l, Apr. 29, 1901. 

X. Paragraph 328, Army Regulations, 1908 (331 of 1910), provides 
that the company fund shall be disbursed by the company com- 
mander ''solely for the benefit of the company." While there is no 
corresponding statement as to a mess fund, still, owing to the fact 
that the company and mess funds are treated together in the same 
set of paragraphs and are of the same general (character, the general 
mess fund should be considered as subject to limitations similar to 
those governing a company fund. Therefore lield that the erection 
of a small house for the shelter of the keeper of a general mess dairy 
is not for the benefit of the members constituting the general mess, 
and the general mess fund should not be expended for that purpose, 
a 15447, Aug. 8, 1910. 

XI. It is well settled that the effect of an Executive proclamation 
reserving pubhc lands in a Territory for a mihtary reservation is to 
withdraw them from sale. As the President has no power to suspend 
the operation of the Territorial laws or to vary their execution in 
any particular, it follows that the Territorial laws in force continue 
to operate over such a reservation in the same manner and to the 
same extent after the establishment of the reservation as they did 
before, for the Territorial government is a mere agency of the United 
States, and has no power to cede or otherwise divest itself of poUtical 
jurisdiction. Therefore, after a reservation has been declared, the 



662 GOVERNMENT HOSPITAL FOE THE INSANE GRATUITY : SYNOPSIS. 

laws of the United States and of the Territory would continue to 
operate on the reservation unless their operation was modified by 
Congress, or unless Congress exempted the reservation from their 
operation, or (both the Territory and the Army being agencies of 
the United States) unless the Territorial statutes interfered with the 
purpose for which the reservation was established. Therefore where 
the Executive proclamation declaring the Subig Bay naval reserva- 
tion added at the end ''and said reservation and all lands included 
within said boundaries are hereby placed under the governance and 
control of the Navy Department," held that it was beyond the power 
of the Executive to withdraw the reservation from the control of the 
insular government and to place the reservation beyond the civil and 
criminal jurisdiction of the insular courts in cases where the control 
of the insular government and the exercise of juriscUction by the 
courts did not interfere with naval administration. C. 12975, July 
15, 1902. 

CROSS REFERENCE. 

Compensation paid by See Pay and allowances I C 6 c (1). 

Debt to See Articles op War LXII D. * 

Not subject to tax See Tax III P. 

Territories I B. 

Purchase from See Contracts VII I. 

Reimbursement of by retired soldier See Retirement II C 2. 

GOVERNMENT HOSPITAL FOR THE INSANE. 

See Insanity. 
Discharge of inmate See Discharge V D; XIII D 4 a (1); b. 

Desertion XIV D. 

Payment of officer in See Pay and allowances I B 5. 

Retired officer See Retirement I G 2 c. 

Retired soldier See Retirement II B 5. 

Soldier committed to See Desertion VII A 2. 

Discharge XVI B 1. 

GOVERNOR OF STATE. 

Abuse of civilians by militia See Articles of War LIV F 2. 

Accountability for public property See Militia IX D. 

Aides to See Militia III I. 

Appointments by, to volunteers See Office VA4to5;5btoc. 

Arms to colleges See Military instruction II B 2 b. 

Can not command Federal troops See Army HE; 12. 

War I E 1 f. 
Control over troops previous to muster in. . .See Volunteer Army II A 1. 

Public money See Militia X A 2. 

Sale of public property to State See Militia IX B 1. 

State camp of instruction See Militia VI B 1 a; b. 

GRATUITY. 

I. ACT OF MAY 11, 1908 (35 STAT. 108), LINE OF DUTY LAW. 

A. Rule — , Beneficial, Therefore Construed Liberally Page 65S 

1 . Rule when death has several causes Page 654 

2. Rule when soldier dies in the post. 

3. Rule when soldier dies on pass. 

4. Self-destruction. 

a. Rule when soldier is sane and dies by his own wrongful act. 

(1) When in the post. 

(2) When on furlough. 

b. Rule when soldier is insane and dies by his own wrongful act- 



GRATUITY I A. ' 653 

I. ACT OF MAY 11, 1908 (35 STAT. 108), LINE OF DUTY LAW— Continued. 

A. Rule — , Beneficial, Therefore Construed Liberally — Continued. 

5. Athletic sports. 

a. Rule — , line of duty status. » 

B. Amended by Act of March 3, 1909 (35 Stat. 735). (This law since 

that date is a misconduct law rather than a line of duty law, but 
still requires liberal construction.) 

1. Married men. 

a. Widow receives gratuity in absence of designation Page 655 

2. Single men. 

a. Gratuity paid to designated beneficiary. 

b. No beneficiary designated, no gratuity. 

3. To what class of troops paid? 

a. Philippine Scouts. 

b. Veterinarian. 

4. Rules for designation. 

a. Continuous service, new designation not required. 

b. An alternate tjeneficiary may be designated. 

5. Suicide is misconduct. 

6. Cases of misconduct other than suicide Page 656 

II. SECTION 1298, REVISED STATUTES. 

A. Issue of Clothing to Replace Clothing Destroyed to Prevent Con- 
tagion. (See Clothing.) 

III. ACT OF MARCH 3, 1885 (23 STAT. 350). 

A. Issue to Replace Clothing Destroyed by Fire, etc. (See Pay and 
Allowances II A 3 a (4) (d) [1] to [2].) 

IV. ISSUE OF RATIONS TO DESTITUTE PERSONS. (See also Laws II A 

1 e (1).) 

I A. The act of May 11, 1908 (35 Stat. 108)^ giving six months' 
extra pay to the beneficiary of an officer or an enlisted man who dies 

' The act of May 11, 1908, is as follows: 

' ' That hereafter immediately upon official notification of the death from wounds or 
disease contracted in line of duty of any officer or enlisted man on the active list of 
the Army, the Paymaster General of the Army shall cause to be paid to the widow of 
such officer or enlisted man, or to any other person pre\'iously designated by him, an 
amount equal to six months' pay at the rate received by such officer or enlisted man 
at the date of his death, less seventy-five dollars in the case of an officer and thirty- 
five dollars in the case of an enlisted man. From the amount thus reserved the 
Quartermaster's Department shall be reimbursed for expenses of interment, and the 
residue, if any, of the amount reserved shall be paid subsequently to the designated 
person. The Secretary of War shall establish regulations requiring each officer and 
enlisted man to designate the proper person to whom this amount shall be paid in 
case of his death, and said amount shall be paid to that person from funds appropriated 
for the pay of the Army." 

The act of Mar. 3, 1909 (35 Stat. 735), amends the above act of May 11, 1908 (35 
Stat. 108), by striking out the words "contracted in the line of duty" and inserting 
in lieu thereof the words "not the result of his own misconduct." 

The Comptroller holds that tho act of Mar. 3, 1909 (35 Stat. 735), which amends the 
act of May 11, 1908, speaks only from its date and is applicable only in cag'es of officers 
and enlisted men who died subsequent to Mar. 3, 1909. XV Comp. Dec, 896. 

Reference to the debates in Congress on the act of Mar. 3, 1909 (Vol. 43, Part III, 
Cong. Rec, 60th Cong., p. 2688), shows that there was no intention in the congressional 
mind of altering the theretofore construction of the words "line of duty," and that 
the new words 'not the result of his own misconduct" were intended to change the 
construction of the law as a whole, but not to be an interpretation of the words "line 
of duty." 

The question of line of duty therefore does not enter in connection with the act of 
May 11, 1908, after its amendment by the act of Mar. 3, 1909. 



654 GRATUITY I A 1. 

upon the active list, is a gratuity. Held, therefore, that the phrase 
'4ine of duty" should be construed with great liberaUty, and doubts 
resolved with a view to give the beneficiary the benefit of the gratuity. 
C. 25498, Seiyt 2, 1909. 

I A 1. Wlien several causes contribute to produce a disability 
resulting in loss of life, some of which clearly are in the fine of duty 
and some not, Tield, that a reasonable test for determining whether or 
not the loss of life was in line of duty is as follows, viz, if the dis- 
ability not in line of duty would not have produced death indepen- 
dentty of those contracted in the line of duty then the death must be 
held to have been in fine of duty. C. 23666, Nov. 19, 1908. 

I A 2. Held, in the case of the death of a soldier within the limits 
of his reservation, that, in the absence of evidence that the death 
was due to Avillful neglect or criminal conduct, it was in line of duty. 
C. 23666, Nov. 20 and Dec. I4, 1908. 

I A 3. A soldier when not required to be in ranks mth his com- 
mand which was on practice march atid, while on pass, was watching 
the breakers and was knocked off from the bowlder upon which he 
was standing and carried out to sea. Held, that as the soldier was 
not engaged in anytliing criminal or unlav^ul, and as there was not 
anything in his conduct which implied carelessness or negligence as 
to his personal safety, his death was accidental and in the line of 
duty, a 23666, Nov. 19, 1908, Dec. 8, 9, 12, and 24, 1908, Jan. 5, 
Feh. 3, 4, 13, 16, and Mar. 2,^ 1909. 

I A 4 a (1). A soldier, thinking that he was drinking aromatic 
spirits of ammonia, drank tincture of opium which he had stolen 
from the horse medicines pertaining to the Quartermaster's Depart- 
ment. He died. Held that as his death was the result of his own 
misconduct it was not in line of duty. C. 23666, Nov. 20, 1908. 

I A 4 a (2). A soldier on furlough took his own life by taking an 
overdose of opiate to relieve pain. Held that the death was not 
caused in line of duty, first, because while on furlough he was not 
on a duty status; second, because the immediate cause of his death 
was his own misconduct in taking the opiate. C. 23666, Dec. 7, 1908. 

I A 4 b. Held that where a suicide results from insanity the death 
is in line of duty in the absence of testimony that the insanity or 
mental depression was incurred bv the fault of the soldier or as a 
result of his misconduct. C. 23666, July 15, Nov. 7 and 19, 1908, 
and Mar. 9, 1909. 

I A 5 a. Precedents in the War Department demand that injuries 
received in playmg baseball and football shoidd l:»e deemed to have 
been incurred in the line of duty, and it is not understood that even 
in pension cases the Department of the Interior has ruled against 
these precedents. The necessity of manly sports among the men 
lias become so well recognized as to place the position of the War 
Department in this respect on a much firmer basis than it has been 
in the past. Held, therefore, that the death of a sergeant who, 
while on pass, was in charge of a football team, and whose death 
was incurred in connection with the game of football, was in line of 
duty under the act of May 11, 1908. C. 23666, Feb. 3, Mar. 11, 1909. 

I B. The act of May 11, 1908 (35 Stat. 108), giving six months' 
extra pay to the beneficiary of an officer or enlisted man who dies 
upon the active list, is a gratuity. Held, therefore, that the act 
should be construed with great liberality, and doubts resolved with a 



GRATUITY I B 1 a. 655 

view to give (lie beneficiary the benefit of the gratuity.' C. 25498, 
Sept. 2, 1909. 

I B i a. Held that when an officer or an enlisted man dies, leaving 
a widow, the widow shall receive an amount equal to six montlis' 
pay of tlie deceased, provided no other person shall have been pre- 
viouslv designated by him to receive said amount under the act of 
May 11, 1908. C. 23666, Sept. 9. 1908. 

IB 2 a. Held that in the case of an unmarried man the six months' 
pav shall be paid to the person designated bv him previous to his 
death, a 23666, Sept. 9., 1908. 

I B 2 b. Held that there is no obligation placed by the act of !May 
11, 1908, upon an officer or an enlisted man that requires him to 
designate a beneficiary under that act. Held also that where an 
officer or an enlisted man has refused or failed to appoint a bene- 
ficiary, the action should be accepted by the Government, and in the 
absence of a widow the Government is thus saved the expense of 
paymg a gratuity. C. 23666, Sept. 9, 190S. 

I B 3 a. Held. \hf\Aj the gratuity of six months' pay provided for 
in trie act of May 11, 1908, may l)e paid to widows or beneficiaries of 
Philippine Scout officers or men, as the Philippine Scouts constitute 
a part of the Army of the United States. C. 23666, Sept. 22, 1908. 

I B 3 b. Held that veterinarians of the Field Artillery and Cavalry 
arms of the service come within the beneficial operation of the act 
of May 11, 1908 (35 Stat. 108). C. 23666, Sept. 25, 1908. 

I B 4 a. Where the service rendered by the soldier is continuous, 
lield that it is not necessaiy for him to make a new designation at 
each new enlistment unless he desires to make a. change in the ben- 
eficiary previously designated. C. 23666, Nov. 13, 1908. 

I B 4 b. HeU that under the act of May 11, 1908 (35 Stat. 108), 
as amended by the act of March 3, 1909 (35 Stat. 735), an officer 
or enlisted man ma}'- name an alternate beneficiary in the event of 
the death of the principal beneficiary.^' C. 23666, Mar. 2 and 8,1911. 

I B 5. Held that a soldier who commits suicide^ dies of an unlaw- 
ful act and that this act causes his death to be considered as a result 
of his own misconduct, unless it can be shown by competent evi- 
dence that he was suffering from a mental disability at tne time he 
committed suicide, and that such mental disability was an incident 
or a result of his military service. C. 23666, June 8, 1910. See also 
id., Sept. 27, Oct. 6, Nov. 5, 16, and 17, Dec. 9 and 17, 1909, Jan. 5 and 
13, Feb. 8, 10, and 15, Mar. 16, 20, and 30, May 5, 10, and 27, June 
1 and 25, July 16 and 23, Aug. 13, 27, and 31, Sept. 3, 17, 19, 20, 
and 29, Oct. 24 and 31, Nov. I,'l0, and 23, Dec. 9 and 17, 1910, Jan. 
31, Feb. 20 and 24, Mar. 20, July 15, Aug. 7. 21, and 26, 1911, Jan. 
1, 1912. 

1 As the act of Mar. 3, 1909 (35 Stat. 735), strikes out the words "contracted in the 
line of duty" in the act of May 11, 1908, and substitutes therefor the words "not the 
result of his own misconduct," the fatuity law does not involve a question of line 
of duty since Mar. 3, 1909, but does involve a question of "misconduct." 

2 XVI Comp. Dec. 595. See Moore v. U. S. (Ct. Cls.), decided Feb. 3, 1913, that 
second act made certain, without changing the meaning, the intent of the first act. 

' "A self-killing by an insane person who understands the physical nature and con- 
sequences of the act, but not the moral aspect, is not a death by suicide within the 
meaning of a condition that a policy of insurance upon his life shall be void in case 
he shall die by suicide." Manhattan Life Ins. Co. v. Broughton (109 U. S., 121, 
127, 132); cases by Justice Gray; Accident Ins. Co. of North America v. Crandel 
(120 id., 530); 21 Central Law Journal, 378-82; 25 American Law Register, 386-90. 



656 GRATUITY I B 6. 

I B 6. Held that under the act of May 11, 1908 (35 Stat. 108), as 
amended by the act of March 3, 1909 (35 Stat. 735), wliich provided 
for the payment of a gratuity to the beneficiary of a deceased officer 
or soldier unless his death should be considered as the result of his 
own misconduct, the following acts are misconduct within the mean- 
ing ol the law: 

The excessive use of alcohol. C. 23666, Jan. 30, Oct. 18, and Dec. 
10, 1910, Jan. 4 and Mar. 14, 1911, and Jan. 1 and 13, 1912. 

Drinking wood alcohol. C. 23666, Aug. 22, Oct. 4 and 14, and 
Dec. 27, 1910. 

Drinldng bay rum and hair tonic. C. 23666, June 2, July 26 and 
Aug. 30, 1910. 

Disobeying sentinel's order to halt. C. 23666, Feh. 18, 1910, 
Fei.6, 1911. 

Absence without leave. C. 23666, Mar. 7, May 3 and 5, June 2, 
8, 15, 16, and 18, July 18, Aug. 9 and 22, Sept. 3, 13, and 14, Nov. 23 
and 28, 1910, Feh. 15 and 20, Mar. 15, July 8 and 21, and Aug. 11, 
1911. 

Trespassing on railroad track. C. 23666, Aug. 4, 1910, Mar. 16, 
July 6, and Aug. 26, 1911. 

Attempting to board a moving train while on furlough. C. 23666, 
Sept. 8, 1910. 

Presence in a house of prostitution for an improper purpose. 
C. 23666, Apr. 23 and 26, 1910, and Jan. 4, 1912. ^ 

Quarreling with his mistress whom he had introduced to the 
world as liis wife. 0. 23666, May 26, 1910. 

Being the aggressor in a fight. 0. 23666, Dec. 22, 1909, June 13, 
1910, Aug. 7, 1911, and Jan. 30, 1912. 

Quarrehng with a pohceman. C. 23666, July 5, 1911. 

Escaping while a garrison prisoner. C. 23666, Jan. 4i 1911. 

Drunkenness. C. 23666, Mar. 23, 1911, and, Jan. 30, 1912. 

Quarreling in a saloon. C. 23666, Nov. 11, 1910, and Aug. 26, 
1911. 

Standing up in a rowboat and causing it to capsize. C. 23666, 
Mar. 29, 1910. 

Unauthorized sailing in bad weather, in which the boat is hkely to 
capsize. C. 23666, Jan. 18, 1912. 

IV. The issue of rations to destitute citizens is governed by 
Army Regulations.^ Issues to entire communities, in behalf of suf- 
ferers by fire, flood, hurricane, etc., can only be authorized by Con- 
gress. In an emergency, it is witliin the discretion of the President 
to make such issues, but his action should be reported to Congress 
for approval.^ Funds appropriated by Congress for relief of such 
sufferers can not be used to reimburse private parties for disburse- 
ments for similar purposes. C. 7344, Nov. 27, 1899; 6875, Aug. 12, 
1899; 7483, Jan. 9, 1900; 7493, Jan. 12, 1900; 7640, Feh. 3, 1900; 
11077, Aug. 22, 1901. A siroilar rule appHes to reimbursements for 
transportation. C. 11919, Jan. 24, 1902. 

' See par. 1241 A. R., 1910 ed. 

2 See Op. Atty. Gen. (MS.) of Oct. 15, 1898. 



GREAT BRITAIN HARBOR REGULATION. 657 

CROSS REFERENCE. 

Act of Mar. 2, 1889 {25 Stat. 869) See Desertion XVI Die. 

Clothing issues See Pay and allowances II A 3 a (4) \(T) 

to (e). 

Flood sufferers See Public property I A 5. 

Widow of retired officer not entitled to See Retirement I K 4. 

GREAT BRITAIN. 

Extradition from See Desertion IV C. 

GUARANTOR. 

Contracts uith See Contracts XXVIII. 

Liability of. See Contracts XI to XII. 

GUARANTY. 

Bids See Bonds I A to F 1. 

Bond signed by bidder's relatives See Bonds I L. 

History of. See Contracts XI A. 

GUARDIAN. 

For officer See Army I B 2 a (2) (a). 

Officer's pay to See Pay and allowances I B 5 

Rights of, over minor See Enlistment I B 1 b to 2. 

Discharge XII a. 
Soldier's pay to See Pay and allowances I C 4. 

GUNNER'S BADGE. 

See Insignia of merit III C. 

HABEAS CORPUS. 

Commanding officer See Command V A 6 to 7. 

Discharge on See Discharge VII A; B. 

Minor See Desertion V B 7. 

Discharge XII D 2. 
State court See Articles of War CII H 2. 

Command V A 6 b; b (1); (1) (a); (b). 

Desertion III D; V F 3 a. 

Discharge VII B. 

Suspension of. See War I C 12 to 13; E 1 e. 

United States court See Command V A 6 a. 

HANDWRITING. 

Proof of See Discipline XI A 17 b (1) (a). 

HARBOR LINES. 

See Navigable waters VI to VII. 
HARBOR REGULATION. 

United States not subject to fee for See Tax III K. 

93673"— 17 42 



658 HAWAII HOMICIDE, 

HAWAII. 

A Territory See Militia X D. 

HAY. 

Right to cut on military reservation See Public property I A 1; III H 3. 

HAZING. 

By cadets See Army I D 3 b (2) (a). 

HEAT AND LIGHT. 

See Pay and allowances IT A 1 to 2. 

Excavation for underground conduits See Appropriations LV. 

Gas See Appropriations XLVII. 

Post exchanges See Government agencies IIJ 9; 10. 

HEIRS. 

Claimants See Claims XII A. 

Contracts need not mention See Contracts XLIII. 

Settlement with See Contracts L. 

HIS ARMS OR AMMUNITION. 

See Articles of War XLII B. 
HISTORY OF REGIMENTS. 
See Militia XX. 

HOLDING CORRESPONDENCE WITH ENEMY. 

See Articles of War XLVI, A; B. 

HOLIDAY. 

See Civilian employees I B to C. 

HO]VfESICKNESS. 

Cause of desertion See Desertion IX L. 

HOMICIDE. 

By guard See Discipline XVII A 4 g (6) to i. 

By officer See Articles of War CII C 1 a. 

Discipline I A 1. 

By sentinel See Articles of War LIX LI; CIIH to I. 

Character of victim See Discipline XI A 12. 

Charge of. See Discipline II D 14 a; XII A 12 a. 

Officer or soldier See Articles of War LIX D. 



HONEST AND FAITHFUL SERVICE HUMANITY. 659 

HONEST AND FAITHFUL SERVICE. 

See Discharge XI B 1 to 8. 

See Enlistment I D 3 to 4. 

Discharge by purchase * See Discharge VI D 2; 5. 

Discharge without honor when not rendered.. See Discharge III E. 

Essential for reenlistment See Enlistment I D 3 to 4. 

In fraudulent enlistment See Enlistment I A 9 f (7) (b) ; g (4) ; 1. 

Necessary for honorable discharge See Discharge II B. 

Of deserter See Desertion VI D. 

Discharge II B 2 a. 

Previous convictions considered See Discharge III C. 

Rights contingent on See Discharge IV D. 

HONORABLE DISCHARGE. 

See Discharge I; II to III; V A; B. 

Certificate of disability See Discharge V A ; B ; XX D 1. 

Effect on status See Discharge XXII A. 

Discipline VIII lie. 

For naturalization purposes See Discharge VI D 4. 

Irrevocable See Discharge XV A 1; 2; D 1; la; b. 

On writ of habeas corpus See Discharge VII A. 

Of felon See Enlistment I A 9 c (2). 

Of fraudulently enlisted minor See Enlistment I A 9 g (2) ; (4) ; 1. 

Officer failing on promotion See Retirement I B 6 c (2); (3). 

Removes charge of desertion See Desertion XVI B. 

Retired soldier See Retirement II F 3. 

Soldier in hands of civil authorities See Discharge XIII D 6 a. 

HORSE. 

Forage for See Pay and allowances II A 2 d to e. 

Sale of officer's, to Government See Army I G 3 b (2) (fe). 

Suitable mount See Pay and allowances I B 7 to 8. 

Transportation of. See Army I G 3 d (3) (c) [4] . 

See Pay and allowances II A 2 a (2) to (3). 

HOSPITAL CORPS. 

See Army I G 3 d (5) to (6). 

HOSPITALS. 

See Army I G 3 e (7) to H. 

Appropriation for See Appropriations XXII. 

Care of civilian employees See Civilian Employees II C. 

Construction of See Appropriations XLII. 

Electric fans for See Appropriations XLI. 

Larceny in See Claims IX. 

Laundry work See Contracts VII I. 

HOT SPRINGS, ARK. 

See Army I G 3 d (7) to (8). 

Garrison court-martiat at See Article of War LXXXII C 2. 

Summary court at See Discipline XVI E 6. 

HUMANITY. 

Issu£ of rations to flood and famine sufferers .See Law II A 1 e (1). 
Sale of coal to civilians in Alaska See Territories III C. 



660 HUNTING LEAVE IMPERSONATION. 

HUNTING LEAVE. 

See Absence I B 2. 

HUNTING PASS. " 

See Absence I C 2. 

IDENTIFICATION. 

Evidence of See Discipline V B 1 ; X H 2; XI A 17 a 

(2) (a) [1] [h]. 

ILLEGAL ACQUITTAL. 

Does not remove charge of desertion See Desertion XVI F. 

ILLEGAL COURTS. 

See Discipline XV H 1 to 3. 
Enlistment I D 3, d. (5). 

ILLEGAL DISCHARGE. 

By way of favor See Discharg e VI A. 

ILLEGAL ORDER. 

Convening See Discipline XV H 1 to 3. 

Disobedience of See Discipline XII A 8 a (3) (a). 

Articles of War XXII B. 

Dismissing officer already mustered out See Volunteer Army IV B 2. 

Duty under " See Discipline V D 6; XII A 8 a (3) (a). 

Articles of War XXI D. 

Executive reserving private lands See Public property III A 2. 

Inoperative See Discharge XV A 2. 

Enlistment I A 3 c. 
Revoking executed discharge See Discharge XV D 1 a; b; c. 

ILLEGAL SENTENCE. 

See Desertion I D. 

Discipline XIV E 9 to 10; XV E to 
F; H; K. 

Action on See Discharge XVI G 1 to 5. 

Correction of See Pay and allowances III E 1 . 

Dismissal See Office IV E 1 b to c. 

In peace for offense committed in war See Discipline XIV E 9 a (13) (a); (b). 

Jurisdiction, lack of. See Discipline IX F 1 a. 

Mitigation of. See Articles of War CXII C. 

IMMIGRATION INSPECTOR. 

Civil officer See Desertion V B 12. 

IMPEACHMENT. 

Of witness See Articles op War CXXI A. 

IMPERSONATION. 

As agent for American National Red Cross, ^ee Red Cross II C. 
Of officer'. See Uniform IV. 



IMPLIED ACCEPTANCE INFEKIOR COURT. 661 

IMPLIED ACCEPTANCE. 

Of appointment See Office, III A 7 a; B 5 a. 

IMPLIED AUTHORITY. 

In appropriation act to purchase article 

named in estimate See Appropriations I C. 

To construct bridges. See Navigable waters III B -) . 

IMPLIED CONTRACT. 

See Claims VII 2; 3. 

IMPLIED LEASE. 

See Claims IV. 

IMPROPER PRACTICE. 

See Articles of War, LX A 3. 

INCIDENTAL EXPENSES. 

Appropi'iations for See Appropriations XXI. 

Use of , to pay armed civilian employees See Insignia of merit III B 3. 

INDIAN. 

Enlistment of See Enlistment I B 1 d (3); 2 a; 1 c (1). 

[nstruction of, by Army officer See Army II C 1. 

Reward for arresting deserter See Desertion V B 14 b. 

Trial by military court See War I C 8 a (3) (c) [1]. 

INDIAN AGENT. 

Army officer as See Pay and allowances 11 A 2 b (1) 

INDIAN COUNTRY. 

Intoxicants sold in See Intoxicants III to IV. 

Order in See Army II C. 

Right of way through See Public Property 111 0; D. 

Trespassers ejected from See Army II I 5. 

INDIAN POLICE, 

Civil officer See Desertion V B 11. 

INDIAN WAR. 

See Articles op War LXIII B. 
War I a 5 to 6. 

INFAMOUS CRIMINAL OFFENSE. 

See Articles of War III A. 
Words and Phrases. 

INFERIOR COURT. 

See Articles of War LXXXII A to 2; 

LXXXIII A to C 2. 
See Discipline XVI A to F. 



662 INFRIKGEMENT OF PATENT INSANITY.' 

INFRINGEMENT OF PATENT. 

See Patent IV; IV A; VII C. 

INJUNCTION. 

Against contractor See Contracts X D. 

Relating to payment of public money See Public Money II C to D. 

INSANE OFFICER. 

Awaiting retirement See Retirement I B 6 d . 

Payment of See Pay and Allowances IBS. 

Resignation by See Office I V D 2. 

INSANE SOLDIER. 

See Insanity. 

Charge of desertion See Desertion XVI C 2. 

Discharge See Discharge V D; XIII D 4 a; a (1); 

b; XVI B 1;2. 

Forfeiture See Desertion XIV D. 

Reward for arrest of See Desertion V B 18 c. 

Suicide of. See Gratuity I A 4 b. 

Trial of See Discipline XV F 3. 

INSANITY. 

I. DISPOSITION OF INSANE PERSONS. 

A. Sent to Government Hospital for Insane Page 662 

1. Insane when enlisted. 

2. General prisoner. 

3. Transportation authorized Page 66S 

B. May be Turned Over to Local Authorities. 

1. If he refuses to go to Government hosi^ital. 

2. If a legal resident where employed. 

C. Civilian Employees not Authorized to Enter Government Hospital. 

D. Insanity Not in Line of Duty, Not Admitted to Government Hospital. 

I A. Section 4843, R. S., which provides for tlie admission of 
certain persons to the Governrnent Hospital for the Insane on the 
order of the Secretary of War, is not mandatory upon the latter, 
but charges him with an exercise of discretion m the preparation and 
execution of commitments to the institution. C. 19208, July 25, 
1910. The section is, however, mandatory upon the superintendent 
of the hospital, who must receive the patient under the order of 
the Secretary. C. 19208, July 25, 1910. 

I A 1. Where a soldier was found to be insane, the msanity ante- 
dating his enlistment and, therefore, rendering the latter fraudulent 
and so voidable, lield, that so long as the enlistment was not voided 
the man was still a soldier and might, under section 4843, R. S., be 
sent to the Government Hospital for the Insane. C. 19208, Feb. 15, 
1906. 

I A 2. An insane general prisoner is usually sent to the Govern- 
ment Hospital for the Insane under the fifth clause of section 4843, 
R. S., relating to "Indigent insane persons who have become insane 
withm three years after their discharge from such service, from causes 



INSANITY I A 3. 663 

which arose durmg and were produced by said service." Should, 
however, the foregoing clause not be applicable, such insane prisoner 
may be sent to the Government Hospital for the Insane under the 
right given m the act of June 23, 1874 ' (18 Stat. 215). C. 18802, 
Nov. 1 and 18, 1905. 

I A 3. Wliere admission to the Government Hospital for the 
Insane is provided for by law (sec. 4843, R. S., as amended), the 
transportation of the patient is also authorized as an incident of the 
right of admission. C. 11067, Aiw. 2J^, 1907. 

IB 1. \^^iere, under section 4843, R. S., an msane civil employee 
of the Army may properly, under the order of the Secretary of War, 
be admitted to the Government Hospital for the Insane, and yet 
declme to enter the said hospital, he may be turned over to the local 
authorities of the place where he may be stationed for custody and 
treatment. C. 11067, Apr. 8, 1910. 

I B 2. Section 4843 II . S. (as amended) authorizes the admission 
of insane persons belonging to the Army and of certain insane civil 
employees of the Army to the Government Hospital for the Insane 
on the order of the Secretary of War; it does not, however, require 
that such an order shall be made. It follows that where such insane 
persons are legal residents of the locality where they may be employed 
at the time of their disability, they are as much entitled to admission 
to a local asylum as is any other citizen or resident of the locality. 
C. 11067, Apr. 24, 1907, May 10 and Nov. I4, 1910; 19208, July 30, 
1907, Oct. 7, 1909, and July 25, 1910. 

I C. Under existing law (sec. 4843 R. S. as amended) authority 
exists for the Secretary of War to send to the Government Hospital 
for the Insane, for treatment and custody, insane persons belonging 
to the Army and insane civilians employed m the Quartermaster's, Pay, 
and Subsistence Departments of the Army. Held, that civilians 
employed in the Army, other than in the departments enumerated, 
might not be sent to that hospital under the order of the Secretary 
of War, as they were not persons belonging to the Army nor yet 
included among the civilians mentioned in the statute. C. 11067, 
Aug. 16, 1901, July 1, 1907, and Apr. 17, 1908, June 3, 1908, Apr. 9, 
May 10, Nov. 15 and 25, 1910. 

I D. Held, that a double condition is imposed as a prerequisite 
for admission to the Government Hospital for the Insane. The 
insanity of the indigent person must be due, not only to causes wliich 
arose during that service, but which were produced bv such service. 
It is clear from the papers in reference that the syphilitic disorder 
from wliich tliis man is suffering was not " produced by such service" — 
that is, was not an incident of his military service, but was due to his 
own misconduct. C. 25122, June 15, 1909. 

CROSS REFERENCE. 

Accused See Discipline IV B 1 d (1). 

Deserter See Desertion V B 18 c. 

Enlistment while suffering from See Enlistment I A 9 f (5). 

Evidence of. , See Discipline XI A 11 a. 

In line of duly See Claims VIII. 

Renders witness incompetent i. See Discipline X B 2 

' See Sec. 4852, R. S., as to prisoners becoming insane in the United States peniten- 
tiary. 



664 INSIGNIA OF MERIT I A 1 a. 

INSIGNIA OF MERIT. 
I. MEDALS. 

A. Medal of Honor. 

1. Act of March 3, 1863 (12 Stat. 751). 

a. Existing law Page 664 

b. Not awarded to contract surgeon . . Page 665 

c. Private property. 

2. Act of April 23, 1904 (33 Stat. 274). 

a. "Official record" defined. 

b. President can not refuse to replace medal. 

c. "Replace" defined. 

d. Time limit on recommendation not to be made. 

(1) Recommendation not made within one year. Page 666 

e. Not granted to deceased persons. 

B. Life-Saving Medals. 

C. Special Medals. 

D. Unauthorized Medals. 

E. Congressional Medal for Philippine Service. 

1. Surgeon of volunteers. 

2. Regular Army. 
n. Certificate of Merit. 

A. Act of February 9, 1891 (26 Stat. 737), Retroactive Page 667 

B. Applicant Belongs to a Regiment. 

C. Not Limited to Distinguished Service in Battle. 

D. May be Earned in Fraudulent Enlistment. 

E. Retired Enlisted Man May Receive. 

F. Eye Witness. 

G. Discharged Soldier - Page 668 

H. "Corps" Defined. 

1. Unassigned recruit. 

2. Philippine Scouts. 

I. May Not be Awarded to an Officer. 

K. Certificate of Merit Pay May be Forfeited by Sentence op Court- 
Martial. 
m. BADGES. 

A. Society. 

1. "In their own right" defined. 

2. Unauthorized. 

a. Society of Foreign Wars. 

b. Association of Military Surgeons. 

B. Campaign. 

1. Part of uniform — issued as such. 

2. Claim to, of discharged men Page 669 

3. Quartermaster employees, not entitled to. 

C. Gunners. 

I A 1 a. The act of March 3, 1863 (12 Stat. 751), did not appear in 
the Revised Statutes. The President continued, however, to award 
medals of honor after December 1, 1873, The joint resolution of 
May 2, 1896 (29 Stat. 473), authorized the issue and use of a rosette 
or knot to be worn in heu of a medal, and a ribbon to be worn with 
any medal that had been theretofore or would be thereafter awarded 
under the provisions of the joint resolution of July 12, 1862 (12 Stat. 
623), and the act of March 3, 1863 (12 Stat. 751). Held, that this 



INSIGNIA OP MERIT I A 1 b. 665 

was an express legislative sanction of the continuance of the practice 
of issuing medals of honor since December 1, 1873. Held, further, 
that the act of April 23, 1904 (33 Stat. 274), had the same force. C. 
llfCrS. June 5, 1903; 16913, Sept. 20, 1904. 

I A 1 b. As section 6 of the act of March 3, 1863 (12 Stat. 751), 
provides for the award of the medal of honor under certain conditions 
to officers, noncommissioned officers, and privates only, held, that 
it may not be awarded for distinguished services in action by a con- 
tract or acting assistant surgeon, who is no longer in the service.^ C. 
1128, Mar. 20, 1895; 17222, Dec. 13, 1904. 

I A 1 c. A medal of honor is a recognition of gallantry, which is 
granted by authority of Congress to such officers or enlisted men, 
"as have most distinguished themselves in action," When a medal 
is conferred there is included in the grant a conveyance of ownership 
of the medal, regarded as a chattel, which becomes the property of 
the grantee, and is subject to such disposition as he may see fit to 
make of it as a part of his personal estate; subject, however, to the 
qualification that it may be worn and used as a medal of honor only 
by the person upon whom it was originally conferred in recognition 
of his military services. C. 11682, Nov. 13, 1901; 16954, Sept. SO, 
1904. 

I A 2 a. The act of April 23, 1904 (33 Stat. 274), provides, "When- 
ever it shall appear from official records in the War Department that 
any officer or enlisted man of the Army so distinguished himself in 
action as to entitle him to the award" of the medal of honor under 
the then existing law, the award shall not be prevented by the fact 
that the person has since become separated from military service, 
or that it was not recommended or applied for whUe he was in the 
service. Held, that the "official record" is one that must have been 
made by an officer of the Army pursuant to statute, regulation, 
orders, or custom. Held, further, that an oral recommendation was 
not an "official record," and, therefore, could not be the basis of the 
award of a medal.^ C. 17810, Apr. 20, 1905. 

I A 2 b. Held, that the President has no authority under the act 
of April 23, 1904 (33 Stat. 274), to refuse to replace a medal that was 
awarded under the joint resolution of July 12, 1862 (12 Stat. 623), and 
the act of March 3, 1863 (12 Stat. 751), when the same is presented 
for that purpose by its owner. G. 16913, Sept. 21, 1904. 

I A 2 c. The act of April 23, 1904 (33 Stat. 274), authorizes the 
Secretary of War to replace medals of honor that had been issued 
under the joint resolution of July 12, 1862 (12 Stat. 623), and the act 
of March 3, 1863. Held, that the word "replace" implies the loss, 
destruction, or surrender of the old medal.^ 0. 16913, July 28, 1905. 

I A 2 d. As the act of April 23, 1904 (33 Stat. 274), eliminates 
the element of time in making recommendation for the medal of 
honor, and requires the award to be based upon official records in the 
War Department : Held, that the establishment of an extra-statutory 

* See 20 Op. Atty. Gen., 421, in which advice was given not to grant the medal as 
when the application was received nearly 28 years after the gallant conduct, there was 
no official record on file in the War Department to substantiate the claim. 

See 24 Op. Atty. Gen., 580, in which it is held that the fact that after the application 
or recommendation is made, the applicant leaves the service does not prevent the 
President from making the award . 

2 Cir. 22, 1905, War Dept. 

3 See Cir. 36, War Dept., Aug. 22, 1904; 25 Ops. Atty. Gen., 529, Nov. 23, 1905. 



666 INSIGNIA OF MERIT I A 2 d (l). 

limitation that the recommendation must be made within a fixed 
time limit in the case of those still in the service is highly inexpedient, 
and should not be attempted in the form of an executive regulation.^ 
G. 16305, Dec. 21, 1904; 19139, Feb. 8, 1906. 

I A 2 d (1 ) . The recommendation for a medal of honor was not made 
until more than a year had elapsed after the gallant conduct upon 
wliich it was based, i. e., July 1, 1863. Held, that under the legis- 
lative rule fixed by the act of April 23, 1904 (33 Stat. 274), if it shall 
appear from the official records in the War Department that an 
officer or enlisted man has so distinguished himself in action as to 
entitle him to the award under the act of March 3, 1863 (12 Stat. 751), 
the award may be made. G. 16305, Dec. 21, 1904.. 

I A 2 e. As the joint resolution of July 12, 1862 (12 Stat. 623), 
and the acts of March 3, 1863 (12 Stat. 751), and of April 23, 1904 (33 
Stat. 274), show a congressional intent to pro^ade for the manual, 
personal presentation of a medal of honor: Held, that the application 
for the award of the medal in the case of a deceased person can 
not be approved. Held, further, that if after the application has 
been approved, the person who was to have been the grantee shall 
die, it may be given to his heirs. G. 17605, Mar. 7, 1905; P. 49, 
55, Sept., 1891, and 52, 30, Mar., 1892. 

I B. In view of the fact that the act of January 21, 1897 (29 Stat. 
494), provides that the acts of June 20, 1874 (18 Stat. 127), and June 
18, 1878 (20 Stat. 165), and the act of May 4, 1882 (22_ Stat. 57), 
empower the Secretary' of the Treasury to bestow life-saving medals 
upon persons making signal exertion in rescuing and succoring the 
ship-wrecked and saving persons from drowning in the waters over 
which the United States has jurisdiction, lield, on the request of the 
Secretary of the Treasury for a decision, that the Quingua River 
in the Philippine Islands is a body of water "over wliich the United 
States has jurisdiction" within the meaning of the act of January 21, 
1897, and that therefore a life-saving medal may be granted for the 
saving of life in that river. G. 27240, Nov. 28, 1910. 

I C. Held, that there is no authority of law for the preparation 
and presentation of special medals for distinguished service incident 
to the rescue of American and Spanish prisoners during the Philippine 
insurrection. G. 12938, July 31, 1902. 

I D. Medals which have not been authorized by law or regulations 
can not be worn on duty. C. 5153, Oct. 18, 1898. 

I E 1. A surgeon of Volunteers, not attached to an organization, 
accompanied the expeditionary force to the Philippine Islands in 1898 
and continued in service over a period which, had he belonged to a 
regiment or other organization of Volunteers, would have entitled him 
to a congressional medal. Held, that a surgeon of Volunteers so serv- 
ing in the Philippine Islands would be entitled to the medal author- 
ized by the act of June 29, 1906. C. 14201, Dec. 16, 1908. 

I E 2. The act of June 29, 1906 (34 Stat. 621), authorizes the award 
of a medal to officers and enfistod men who served beyond the terms 
of their enlistments to assist in the suppression of the Phifippine insur- 
rection. Held, by the Secretary of War that those men, or the fami- 
lies of those men, who enlisted or reenlisted in the Regular Army dur- 

1 U. S. V. Symonds (120 U. S., 46); U. S. v. Bishop (120 U. S., 51); Lowrey v. U. S. 
(32 Ct. Cls., 259). 



INSIGNIA OP MERIT II A. 667 

ing the war with Spain and who were entitled to their discharges upon 
the conclusion of the war, but who served beyond that time and were 
subsequently honorably discharged, or who died in the service, be 
considered entitled to the medals provided by the act of June 29, 1906. 
C. 14201, Jan. 6, 1908. 

II A. Held, that the act of February 9, 1891 (26 Stat. 737), which 
provided for the granting of certificates of merit, is retroactive.^ 
C. 1124, Mar. 18, 1895; 13084, Nov. 13, 1903. 

II B. When an enUsted man belongs to a regiment, Tield, that the 
recommendation of the regimental commander is necessary to the 
award to him of a certificate of merit. This recommendation may be 
based upon any fact or facts deemed by him to justify the award, such 
as the recommendation of the company commander or any other 
officer, or upon any other authentic information brought to his 
knowledge. C. 10679, June 13, 1901; 13819, Jan. 29, 1903; 13864, 
Feb. 2, 1903; 15391, Dec. 15, 1903; 16095, Mar. 26, 1906; 17222, 
Jan. 9, 1911. 

II C. Under section 1216, R. S., as amended by the act of March 
29, 1892 (27 Stat. 12), a certificate of merit may be given to any 
enlisted man who shall distinguish himself in the service. Held that 
this is not Hmited to distinguished service in battle. Held further that 
the certificate may be given where an enlisted man participated in 
subduing a fire which threatened to destroy public property. C. 4IO8, 
May, 1898. Held, also where an enlisted man saved another enlisted 
man from drowning. C. 13086, Aug. 7, 1902; 13087, Aug. 7, 1902; 
19139, Feb. 8, 1906. Held that where an enlisted man saved from 
drowning a member of the military establishment who was not an 
enlisted man that the award could be made. C. 13088, Aug. 7, 1902; 
18517, Sept. 6, 1905. 

II D. An- eiiHsted man, while serving a fraudulent contract of 
enlistment, performed an act of gallantry, for which a certificate of 
merit was awarded by the President, held, that as the status of the 
applicant at the date of the act and of the subsequent award was that 
of an enhsted man who was rendering legal service, the award was 
lawful and he is entitled to the additional pay which is authorized by 
the statute. 0. 16644, July 25, 1904. 

II E. Section 1216, R. S., as amended by the act of March 29, 1892 
(27 Stat. 12), provides "that when any enlisted man of the Army 
shall have distinguished himself in the service the President may, at 
the recommendation of the commanding officer of the regiment or the 
chief of the corps to which such enlisted man belongs, grant him a 
certificate of merit." Held, that a retired enlisted man is an '' enlisted 
man of the Army" within the meaning of this statute and therefore 
eligible for a certificate of merit. The recommendation reCj[uired 
should come from the commanding officer of the regiment or the chief 
of the corps to which such enlisted man belonged. C. 8445, June, 
1900. 

II F. Held, that a requirement in Army Regulations that the 
recommendation " must originate with an eyewitness" is an interpola- 
tion not authorized or called for by the original statute, section 1216, 
R. S., as amended by the act of February 9, 1891 (26 Stat. 737), and 
the act of March 29, 1892 (27 Stat. 12), and an instance of quasi 

1 See McNamara v. U. S., 28 Ct. Cls., 416. 



668 INSIGNIA OF MERIT II G. 

legislation unwarranted in an Army regulation. P. 1^7 , 162, May, 
1891; a 19139, Feb. 8, 1906. 

II G. Held, that a certificate of merit may be given to an honorably 
discharged soldier with pay from the date of the gallant conduct 
for which the certificate was granted to date of discharge, if the 
recommendation was made before the soldier was discharged. Held, 
further, that if the recommendation was not made until after the 
soldier's discharge the certificate can not be granted.^ G. 12558, 
July 25, 1902; 16315, May 9, 1904; 23262, May 28, 1908. 

II H. Held, that the word "corps" as used in the acts of February 
9, 1891 (26 Stat. 737), and of March 29, 1892 (27 Stat. 12), means 
"any stafi" corps or department of the Army." C. 8445, June 21, 
1904. 

II H 1 . An unassigned recruit was recommended for the certificate 
of merit. Held, that The Adjutant General was the "chief of the 
corps" upon whose recommendation award might be based within 
the meanmg of section 1216, R. S., as amended by the act of March 29, 
1892 (27 Stat. 12). C. 13978, Jan. 20, 1903. 

II H 2. Held, in the case of a Philippine Scout whose company is 
not a part of a battalion or regiment, that his company commander 
is the "chief of the corps" upon whose recommendation the certificate 
of merit may be awarded. Held, further, that if a Philippine Scout's 
company belongs to a battalion which does not belong to a regiment, 
the battalion commander is the "chief of the corps" upon whose 
recommendation the certificate of merit may be awarded. C. 16973, 
Oct. 13, 1904. 

II I. Held, that under the law which controls the award of the 
certificate of merit, viz, section 17, act of March 3, 1847 (9 Stat. 186) ; 
sections 3 and 4, act of August 4, 1854 (10 Stat. 575); sections 1216 
and 1285, R. S.; act of February 9, 1891 (26 Stat. 737), and the act of 
March 29, 1892 (27 Stat. 12), the certificate of merit may not be 
granted for gallant conduct by a commissioned officer. (J. 22110, 
Nov. 15, 1907. 

II K. Held, that as certificate-of-merit pay is a part of a soldier's 
pay it is subject to forfeiture by sentence of court-martial. C. 1308, 
Apr. 30, 1895. 

III A 1. Held, that the words "in their own right" which occur in 
those laws which authorize the wearing of certain society badges 
mean "right" because of their own service or because of their kinship 
to one who had been in the service.^ C. 14956, Jan. 30, 1904- 

III A 2 a. Held, that there is no authority of law for wearing in 
uniform the badge of the Society of Foreign Wars. C. 14956, Sept. 
12, 1903. 

Ill A 2 b. Held, that the insignia of the Association of Military 
Surgeons of the United States may not be worn by officers or enlisted 
men in uniform. C. 15610, Apr. 6, 1905. 

Ill B 1. The President prescribes the uniform of officers and 
enlisted men under section 1 296 R . S. Held, that the manner in which 
service in war generally, or service in a particular war, or service in any 
particular military operations shall be shown, is entirely within the 
Executive discretion, and he may cause it to be indicated by a service 

> See 24 Op. Atty. Gen., 127, Sept. 23, 1902, and IX Comp. Dec, 160, Oct. 24, 1902. 
2 2.3 Op. Atty. Gen., 454. 



stripe as at present prescribed for enlisted men, cr by a suitable metallic 
device to be worn as an article of uniform Hn a manner to be prescribed 
by him in suitable uniform regulations. He may cause such devices 
or stripes to be procured by the Quartermaster's Department and 
issued to the soldier to be charged in his clothing allowance, or he 
may treat it as an article of equipage and issue it free to enhsted men 
to be replaced at the soldier's expense if lost by his o\vn fault or care- 
lessness. C. 23875, Sept. 21, 1908; 17243, Nov. 29, 190^.^ The 
Quartermaster's Department may supply these badges or devices to 
officers, at cost price, who may wear them in pursuance of appropriate 
uniform regulations. Such a distinctive bad^e may not be issued to 
officers and enhsted men of the volunteer armies who are no longer in 
the mihtary service, as such issue would constitute a donation of 
property and would for that reason be beyond the power of the 
Executive. 0. 14201, Feb. 25, 1903; 17243, Nov. 29, 1904; 23839, 
Oct. 8, 1908, and May 30, 1910. Held, further, that as such badges 
constitute stores and supplies within the meaning of section 17 of the 
act of January 21, 1903 (32 Stat. 775), they may be issued to the 
governors of the several States for the use of their Organized Mihtia 
as part of the uniform. C. I4148-F, Oct. 13, 1908; 23839, Oct. 26, 
1908, arid Bee. 2, 1908. 

Ill B 2. Held, that any officer or enhsted man who served in a cam- 
paign, service in which is recognized by a campaign badge, is, other 
conditions being complied with, entitled to such badge if he was in the 
service at the date when service in such campaign was designated for 
recognition by said badge, or if he was not in the service at the date 
of such designation but is now, he shall likewise be entitled to the 
badge. C. 17243, Sept. 23, 1911. 

Ill B 3. An organization entitled "Batson's squadron of Phihppine 
cavalry" was formed from among the civilian employees of the Quar- 
termaster's Department during the Philippine insurrection. Its 
employment was assimilated, in all of its essential incidents, to that 
of the Philippine Scouts and guides whose services are obtained by 
contract and paid for out of the appropriation for incidental expenses. 
But the squadron was actually paid out of insular funds furnished for 
that purpose to the Quartermaster's Department. Held, therefore, 
that the members of that squadron are not entitled to the Phihppine 
campaign badge. C. 17683, Mar. 15, 1905. 

Ill C. A soldier became entitled to a first-class gunner's badge, but 
was discharged before it was awarded. Held, that the fact that he has 
since left the Ai-my should not be considered to be a bar to his receiv- 
ing the badge. C. 18563, Sept. 14, 1905. 

INSPECTION. 

Bonds See Bonds II Q. 

Militia See Militia VI D 1. 

INSPECTOR GENERAL'S DEPARTMENT. 

Inspection of funds by See Army I B 2 b (2) (a). 

Redetail in See Office III Did. 

Reports of. See Army I G 3 a (3). 

' See Ct. O. No. 4, War Dept., T905, as amended by G. O. 129, 1908. See also Cir. 
82, War Dept , 1908, and G. O. 96 and 97, War Dept., 1909. 



670 INSTRUCTOKS INTERVENTION. 

INSTRUCTORS. 

Military at colleges See Military instruction II B 1 to 2. 

Service schools See Absence I B Ig (1); (2). 

INSUBORDINATION. 

See Articles of War LXV A. 

INSULAR BUREAU. 

Bonds filed in See Bonds II O. 

INSULAR POLICE. 

Unauthorized force See Militia IV C. 

INSURANCE. 

Buildings on target range See Militia VI C 1 e. 

Expense of contractor See Contracts XXVII. 

INTENT. 

Burglary .^ See Articles of War LXII C 7. 

Challenge See Articles of War XXVI A. 

Congressional, as to treatment of general 

prisoners See Discharge II B 2 a. 

Desertion See Articles of War L A. 

Desertion I; I A; V F 15; XX A; B. 

Discipline II D 7; IX I 1; XI A 4 a. 

Embezzlement See Articles of War LXII C 2. 

Homicide See Discipline II D 11 a. 

Larceny See Discipline IX I 2; XI A 8 a. 

Misappropriation See Discipline II D 16 a. 

Mutiny See Articles of War XXII A. 

Discipline XIV E 9 d (1) (6). 
Place of residence See Tax I E. 

Residence I. 

INTEREST. 

See Articles of War LXII C 15; E. 

In land, hoiv conveyed See Public property I A 1. 

Loaning money at See Civilian employees XVI A. 

Articles of War LXI B 11. 
Not allowed on claims See Claims HI. 

INTERNAL REVENUE. 

Appropriation for paying See Appropriations XXXIX. 

INTERMENT. 

Officer See Pay and allowances II A 2 c to d. 

INTERNED PRISONERS. 

Finger prints of, improper See Army II K 1 h (1). 

INTERVENTION. 

In Cuba See War I C 8 c (1) to (2). 

In Panama See War I C 8 c (1). 



INTOXICANTS I. 671 

INTOXICANTS. 

I. DEFINED Page67i 

A. Beer. 
n. PURCHASE, SALE, OR USE OF, ON MILITARY RESERVATION. 

A. May be Shipped Into Such Reservation. 

1. Rule as to deliveries in original packages. 

2. Order and delivery in small package Page 672 

B. Commanding Officer Decides Whether Liquor is Intoxicating. 

C. Use of, at Bachelors' Messes. 

D. Use of, at State Maneuver Camp. 

E. Restraint op Sale of Opium. 

F. Jurisdiction of Offense. (This applies also to Indian country). 
m. INTRODUCTION OF, INTO INDIAN COUNTRY. 

A. Indian Country Defined Page 673 

1. Introduction forbidden if Indian in any degree under control of Indian 
agent. 

B. Power of Secretary op War to Issue License. 

1. Exception when to be used by Army or for sacrament Page 674 

C. Duty op Commanding Officer. 

1. May arrest civilians to prevent introduction. 

2. May destroy liquor. 

D. Duty of Officers. 

1. To destroy liquor found. 
IV. SALE AT NATIONAL HOME FOR DISABLED VOLUNTEERS.. Page 675 

I. In the absence of a legislative definition of the phrase ' 'intoxi- 
cating liquors," and having regard to the very general language used 
in the act of February 2, 1901, held, that the sale of a beverage at 
post exchanges which contains an appreciable quantity of alcohol, 
would fall within the proliibition of the statute. C. 18094, June 5, 
1905; 19521, Apr. 14, 1906; 19768, May 19, 1906; 23027, Apr. 3, 
1908. 

1 A. Section 17 of the act for increasing the efficiency of the Army 
of the United States, etc., approved March 2, 1899 (30 Stat. 981), 
provides ''that no officer or soldier shall be detailed to sell intoxicat- 
ing drinks, as a bartender, or otherwise, in any post exchange or can- 
teen * * * ". Held, that beer is an intoxicating drink wdthin 
the meaning of this section.^ C. 5992, Mar., 1899. 

II A. There is no law forbiddmg the sliipment of intoxicating 
liquors to military reservations as such. C. 13829, Dec. 26, 1902. 

11 A 1. The act of February 2, 1901 (31 Stat. 758), does not pro- 
hibit the use, but it does prohibit the sale, of beer, wine, or any 
intoxicating liquor upon any premises used for military purposes by 
the United States, lietd, therefore, that the deliver}^ on a military reser- 
vation, by railroad and express companies of liquors, in original pack- 
ages, to bona-fide consignees for their own use, would not be an 
infraction of the law; otherwise, however, if general consignments of 
liquors were made by dealers to an express company to be delivered 
to parties who had not ordered the same and were unknown at the 
time to the dealers and the express company, the goods to be paid 
for on delivery. C. 14323, Mar. 27, 1903. 

^ Prepared by Lieut. Col. John Biddle Porter, judge advocate, assistant to the Judge 
Advocate General, U. S. A. 

2 But eee act of Feb. 2, 1901 (31 Stat. 748). 



672 INTOXICANTS II A 2. 

II A 2. Held, that for a person to take orders on a military reserva- 
tion from enlisted men for whisky in small quantities and then to 
deliver the same would constitute an express violation of section 38 
of the act of February 2, 1901 (31 Stat. 758). 0. 18037, Apr. 26, 
1909. 

II B. In cases where the question of whether certain specific 
beverages, alleged to be nonintoxicating, might be sold at post ex- 
changes, has been referred to the War Department for decision, 
held, that the department should not assume the determination of 
such questions, which are left under the regulations (par. 357, A. R., 
1910), to commanding officers; that no hard and fast rule exists by 
which the intoxicating property of a beverage may be determined by 
the percentage of alcohol therein and suggested that the fact of whether 
or not the sale of the specific beverage was permitted in prohibition 
States might serve as a guide to post commanders. C. 18094, June 5, 
1905; 22782, Feb. 27, 1908; 23027, Apr. 3, 1908, May 7, 1908, June 4, 
1908, July 25 and 30, 1908, Mar. 1, 1909, and Aug. 22, 1911. 

II C. i7eZ(^, that the act of February 2, 1901 (31 Stal^. 758), in so 
far as it prohibits the sale of or dealing in certain intoxicants in a 
post exchange or canteen or Army transport or upon any premises 
used for mihtary purposes by the United States, is not intended to 
apply to the officers' messes established at military posts for the ac- 
commodation of unmarried officers and others, who do not desire 
to establish individual messes or eating arrangements in their own 
quarters. G. 12779, Apr. 5, 1909. 

II D. Where the Federal Government accepted the tise of a State 
maneuver camp for militaiy maneuvers in which the troops of the 
State were to Join the Regular Army for a short period, held, that 
during the period of the joint maneuvers the laws of the State in 
regard to the sale of intoxicants within the limits of the maneuver 
camp should govern in that portion of the camp used by the State 
troops, but that in the remainder of the camp, and during the period 
of the sole occupancy of the maneuver camp by the Federal forces, 
the provisions of the act of Februaiy 2, 1901 (31 Stat. 758), for- 
bidding the sale of intoxicating liquors ''on any premises Used for 
military purposes by the United States" were operative. G. 19983, 
June 29, 1906. _ ' 

II E. It having been reported that the unrestricted sale by civilians 
of opium was causing injury to the militaiy service at Fort Sherman, 
Idaho— i^eZ(Z, that such sale might be restrained by Congress under 
its general power of legislation over the Territories;* or that, in the 
absence of action by Congress, the legislature of the Territory would 
be authorized to regulate the same; and that through one of these 
two means the evU might be abated. P. 30, 72, Feb., 1889. 

II F. Under the act of July 23, 1892 (27 Stat. 260), amending 
section 2139, R. S., the Secretary of War may give authority in 
writing for the introduction of intoxicating liquors into the Indian 
countiy. But this authority is subject to the restriction of the 
existing act of June 13, 1890, so that the Secretary could not properly 
permit the introduction of such liquors into Indian country within a 
prohibition State with a view to their being sold or supplied to enlisted 
men. Where certain ''Hop Tea Tonic," alleged to be intoxicating, 

» See Natl. Bk. v. Co. of Yankton, 101 U. S., 133. 



INTOXICANTS III A. 673 

was attempted to be introduced at the post of Fort Yates, situated 
upon an Indian reservation in North Dakota, exchisive jurisdiction 
over which is vested in the United States, held, that the admission or 
sale of such liquor, if intoxicating, would be an offense against the 
United States, not against the State, since the act of August 8, 1890, 
providing that intoxicating liquor shipped into a State shall be sub- 
ject to the operation of the State laws as soon as it enters the territory 
of the State, can not apply to a district over which the United States 
has exclusive jurisdiction, and therefore that the State authorities 
would not be empowered to make a seizure of such liquor. P. 62, 
Jfi5, Nov., 1893: G. 12941, Sept. 13, 1902; 14323, Mar. 27, 1903; 
18037, May 23, 1905; 19219, Feb. 19, 1910. 

Ill A. Held, that the term ''Indian country," as employed in the 
statutes regulating trade and intercourse with the Indians (see, par- 
ticularly, Ch. IV, Title XXVIII, R. S.), might j)roperly be defined 
in general as including the following territory, viz: Indian reserva- 
tions occupied by Indian tribes; other districts so occupied to which 
the Indian title has not been extinguished ; any districts not in other 
respects Indian country, over which the operation of those statutes 
may be extended by treaty or act of Congress.^ R. 39, 214, Oct., 1877. 

Ill A 1 . Held, that the introduction of liquor into the Indian 
countiy is forbidden by section 2139 R. S. as amended, where the 
Indians are in any degree under the control or charge of an Indian 
agent.2 0. 25468] Aug. 23, 1909. 

Ill B. TheSecretary of War has no general authority to license the 
introduction of spirituous liquors into the Indian country. Under sec- 
tion 2139, R. S., and the act of July 23, 1892 (27 Stat., 260), amending 
that section and extending it to beer and other malt liquors,^ the 
Secretary of War is without authority to permit the introduction into 
that country of any spirituous or malt liquors intended for sale. P. 
55, 172, 283, 380, Aug. and Sept., 1892; 56, 31,^ Oct., 1892; C. 506, 
Oct. 7, 1894. The statutes cited do not authorize the Secretary of 
War to license the sale of spirituous or malt hquors in the Indian 
country. Whether a particular article is in fact spirituous or malt 
liquor is a question for the courts, and not the War Department, to 
decide. C. 1747, Nov., 1895; 7813, 7981, Mar. and Apr., 1900; 
10810, July 10, 1901; 11160, Aug. 28 and Sept. 10, 1901; 11190, Sept. 
5, 1901; 11966, July 25, 1902; 20195, Aug. 9, 15, and Sept. 25, 1906; 
23027, Apr. 3, 1908. 

' See this opinion as adopted and incorporated in G. 0. 97, Hdqrs. of the Array, 
1877; also, in the same connection, 14 Op. Atty. Gen., 290; United States v. Forty- 
three Gallons of Whisky, 3 Otto, 188; Bates v. Clark, 5 id., 204; United States v. 
Seveloff, 2 Sawyer, 311. 

2 See Renfrow v. United States, 1895 (3 Okla., 161); and United States v. Fling, 
870 (25 Fed. Gas., No. 15124). 

See also 191 Fed . Rep . , 673, where it was held that the portion of Oklahoma which was 
formerly the Indian Territory did not cease to be Indian country on the admission of the 
State, nor did such admission affect the application to that part of the State of sec. 2139, 
R. S.,orof theactof Jan. 30, 1897(29 Stat. 506), relating to the sale of liquor to Indians 
and its introduction into Indian country. Also held, that the power of Congress over 
Indian relations is plenary. Also held, that the provision in the Oklahoma enabling 
act (34 Stat. 269) that the State constitution shall prohibit the manufacture or sale 
of intoxicating liquor in certain portions of the State did not repeal that portion of the 
act of Jan. 30, 1897 (29 Stat. 506), which made it a crime to introduce liquor into the 
Indian country. 

3 See now this section as amended by act of Jan. 30, 1897 (29 Stat. 506). 

93673°— 17 43 



674 INTOXICANTS IH B 1. 

Ill B 1. Prior to the act of July 23, 1892 ' (27 Stat. 260), no formal 
rule or regulation governing the subject of the introduction of liquor 
into the Indian country was promulgated by the War Department, 
but shortly after the passage of the act the Secretary of War decided 
that no permits would be granted except in cases where the liquor 
was to be used in or connected with the United States Army. This 
decision was adhered to until October, 1897. Since the latter date 
it has been the view of the department that although the act should 
not be construed to establish in the War Department a license bureau 
to regulate the liquor traffic in the Indian country, yet permits should 
be given to introduce wine into the Indian country for sacramental, 
hospital, and in certain cases for private medicinal use where there 
would be some guaranty that the privilege would not be abused. A 
permit to introduce wine for sacramental purposes is granted only 
upon the application of a minister of the Gospel having charge of a 
congregation or district in the Indian country, and oiily when for- 
warded to the War Department through the applicant's ecclesiastical 
superior, or upon other evidence of authenticity. The authority of 
the War Department to issue permits under the statutes covering 
the matter has in practice been viewed as hmited to permits to intro- 
duce intoxicating liquor into the Indian country and as not extending 
even by implication to permits for its sale. Thus repeatedly held 
that permits to individuals to introduce into the Indian country any 
kind of intoxicating liquor, intended for sale either as a beverage or 
by druggists for medicinal purposes, can not legally be granted. C. 
2399, 24O6, 2571, 2795, July to Bee, 1896; 31 40, 3404, 3716, Apr. to 
Dec, 1897; 4OO2, 4105, Hay, 1898; 6857, 6900, Aug. and Sept., 1899; 
4105, June, 1900; 7063, Dec. 31, 1910, July 26, 1911; 17024, Jan. 16, 
1912. 

Ill C 1. Under section 2150, R. S., a military commander may be 
authorized and directed hj the President to arrest by military force 
and deliver to the proper civil authorities for trial, any white persons 
or Indians who may be in the Indian country engaged in furnishing 
liquor to Indians in violation of law; as also to prevent, by military 
force, the entry into such country of persons designing to introduce 
liquor therein contrary to law. Held, that this authority to prevent 
was clearly an authority to arrest, where arrests were found necessary 
to restrain persons attempting to introduce liquor or other inhibited 
property. R. 42, 192, Mar., 1879. 

Ill C 2. In view of the duty devolved by section 2140, R. S., upon 
"any person in the service of the United States," to take and destro}^ 
spirituous liquors in the Indian country, lield, that a post comrnandor 
in such country who seized and destroyed a quantity of such liquors 
introduced into such country without the authority of the Secretary 
of War, but not found within the hmits of his military command, had 
not exceeded his powers. R. 31, 205, Feb., 1871. 

Ill D 1. In view of the positive terms of section 2140, R. S., an 
officer of the Army not only may but should " take and destroy any 
ardent spirits or wine found in the Indian country, except suchas may 
be introduced therein by the War Department." The section im- 

goses this as a "duty" upon "any person in the service of the United 
tates" — including of course military as well as civil officials. Held, 

1 This act has been amended by the act of Jan, 30, 1897 (29 Stat. 50G). 



I 



INTOXICANTS JOINT ENCAMPMENT. 675 

however, that the authority given by the statute to destroy liquor 
brouglit into an Indian reservation did not authorize the destruction 
by the militaiy of a building, the private property of a citizen, in 
which the liquor was found stored. R. 35, 850, Apr., 1874. 

IV. The premises occupied by the National Home foi" Disabled 
Volunteer Soldiers (including the various branches thereof) are not 
"premises used for military purposes" within the meaning of section 
38, act of February 2, 1901, forbidding the sale of intoxicants. C. 
12817, July 2, 1902. 

CROSS REFERENCE. 

Use of. * See Articles of War XXXVIII A. 

Introduction into Indian country See Army II C. 

Permits for introduction into Alaska not 

authorized See TerritorU';s III E. 

Prohibition laws See Public property V F 1 a (i). 

INVENTION. 

Property right See Patent VI A. 

INVESTIGATION. 

Boards of See Discipline XVIII A. 

Covrt of inquiry See Articles ofWarCXVA; B; (.'XIX A; 

B;CXXIA. 

Department commander See Articles of War LXXII I. 

Oaths administered See Office III A 8 b (1.) 

Reyimental court See Articles of War XXX A. 

IRRIGATION. 

License for See Public property VIII A 4 d. 

Militai-y reservation See Public property I A 1. 

Right of way for See Public property VI B to E. 

ISSUE. 

Public properly to Militia See Militia IX A ; A 1 ; 2 ; 2 a. 

JEOPARDY. 

Twice in See Articles of War Oil A to I. 

JOINT AND SEVERAL BOND. 

See Bonds I M 11. 
When required See Bonds I Q. 

JOINT ENCAMPMENT. 

See Militia II to III; VI B 2 to C. 
Payment of Militia at See Militia XI C. 



676 JUDGE ADVOCATE JURISDICTION. 

JUDGE ADVOCATE. 

Department — Signing of charges by See Discipline II D 12 a (1). 

General court-martial See Discipline IV A to O. 

General court-martial, signing of charges by . .See Discipline II D 12 a. 

General court-martial, detail of See Discipline III C 2 to 5. 

Military commission See War I C 8 a (3) {d) [1]. 

Service of subpoena See Discipline X F 1; 2. 

JUDGE ADVOCATE GENERAL. 

Duties of. See Army I (t 3 a (4) to (5). 

Does not render opinions on matters that 

relate only to the States See Army I G 3 a (4^ (n) [4] 

See Militia XXI. 

Grounds for recommending clemency See Pardon VI. 

Discipline XV F to G. 

Record of general court-martial See Discipline XV to XVI. 

Record of military commission See War I C 8 a (3) (c) [3]. 

Revision of court-martial records See Discipline XV to XVI. 

Signing of charges by See Discipline II D 12 a (1). 

JUDICIAL NOTICE. 

Amnesty See Discipline IX F 1 a. 

Printed orders See Discipline XI A 17 a (2) (6) [1]. 

Time of war See Discipline II D 15 a. 

JURISDICTION. 

Attaching of See Command V B 2 a. 

Board of review See Army I G 3 d (2) (a). 

Bridges See Navigable waters III A 1 . 

Cession of See Command V A 3 c (1) f . 

Civil court See Discharge VII B. 

Department commander over troops tempo- 
rarily in department See Articles of War LXII H. 

Double amenability See Articles of WarLIX D; CIIC. 

Civil court over retired officer See Retirement I G 2 d. 

Over civilians by general court-martial See Articles of War LXIII A to E. 

Comity between civil and military See Discipline III E 4. 

See Articles op War LIX D. 

Court-martial can not pass on question of 
contract See Pay and allowances I C 2. 

Court-martial, over cadets See Armit I D 3 a. 

Enforce statutes See Navigable waters IX to X. 

General court-martial See Discipline VIII A to 12; HID; XV 

CI; I 1. 

General court-martial over murder See Articles of War LXII A. 

Military commission See War I C 8 a (3) (b) to (d). 

Military courts See Articles op War LVIII A. 

Discipline XIV E 9 a (13). 

Military reservation See Army I E 5. 

Public property III A 1; V to VI. 

Over questions of carrying weapons See Arms II. 

Over soldier See Discharge XXII A; B. 

Presumption that court has See Discipline XV C. 

Retiring board See Retirement I B 1 c to d. 

Retired enlisted men See Retirement II B 3 to 4. 

Reviewing authority See Discipline XIV C 1; D. 

Sale of intoxicants on reservations See Intoxicants II F. 

Summary court See Discipline XVI E 2. 

Volunteer after rmister out of organization. .See Volunteer Army IV C to D. 



JURY DUTY LAW: SYNOPSIS. 677 

JURY DUTY. 

Liability of officeis and civilian employees to .See Civilian employees III A. 

JUSTICE OF THE PEACE. 

Officer as See Office IV A 2 d (2) (b). 

LABOR AND MATERIAL-MEN. 

See Contracts XX to XXI. 
How affected by modification of bond See Bonds I M 7. 

LABORERS. 

See Eight-hour law I; VII. 

Surgeon General 's office See Appropriations LI V. 

Without advertising See Contracts III B. 

LAND. 

See Public property II to III. 

Purchase of. See Navigable waters X D to E, 

See Appropriations III. 

LARCENY. 

By soldier See Command V A 2 e. 

Hay on military reservation See Command V A 3 g. 

Intent See Discipline XI A 8 a. 

Pardon of. See Pardon VII A. 

Public money See Claims XII Q. 

Statement by accused See Discipline IX I 2. 

LAUNDRY. 

Construciion of See Appropriations XVI I._ 

Cost of operation See Pay and allov-^ances i C 6 b (5). 

Debts to See Government agencies IV. 

Establishment of See Government ag encies I A. 

Failure to pay debt to See Articles of War LXII D. 

Government work See Government agencies I E. 

Heat furnished to See Government agencies II J 10. 

Military prison See Appropriation XXXVI B. 

LAW. 
I. STATUTES. 

A. Revised Statutes. 

1. Are a single act of Congress dated June 22, 1874 Page 678 

2. Do not require publication in General Orders to become effective on 

Army. 

3. Acts of a temporary character that were not included were not repealed. 

B. Construction op. 

1. "May" equivalent to "shall" or "must." 

a. In statutes conferring power upon public officer. 

b. In appropriation act Page 679 

2. "Authorized" may mean "required" or "directed." 

3. If details are prescribed, they must be executed without variance. 

4. Computation of time from act done excludes date of act Page 680 

a. Reviving of act lapsed due to passage of time. 

5. Section 3716, Revised Statutes, relates to advertising and not to pur- 

chase. 



678 LAW T A 1. 

I. STATUTES— Continued. 

B. Construction of — Continued. 

6. Remark by Member of Congress, reports of committees, etc., can not be 

safely followed in construing law. 

7. Articles of War. ' 

a. Penal and construed strictly Page 681 

8. Authority to install lights is authority to lay conduit for electric 

current. 

9. Permanent legislation in appropriation bill. 
n. REGULATIONS. 

A. Army Regulations. 

1. Three classes — described. 

a. No statutory sanction for regulations as a whole Page 682 

b. "When in conflict with statutes they are null. 

c. Can not grant legislative authority Page 683 

d. Can not occupy a field already occupied by statute. 

e. Regulations founded on necessity. 

(1) Issue of rations to flood and famine sufferers. 

f. Not retroactive unless specifically provided. 

g. In furtherance of statutes. 

(1) Do not extend to subjects, control of which is constitu- 
tionally vested in Congress. 

I A 1. The Revised Statutes are a single act of Congress, wliich, 
in the absence of any special provision as to the date on which the 
same (or any part of the same) should take effect, went into operation 
Gn the day of its approval by the President — June 22, 1874.^ The 
date of the certificate, published with the same, of the Secretary of 
State, viz, February 22, 1875, simply fixes the time at which the 
contents of the printed volume became evidence of the laws therein 
contained. R. 36, 630, Aug., 1875. 

I A 2. The laws relating to the Army, embraced in the Revised 
Statutes, became operative as to the Army upon the ajjproval by the 
President of the body of the revision, irrespective and independently 
of anv publication of such laws in general orders. R. 36, 666, Sept., 
1875.^ 

I A 3. Held, that an act of 1856, authorizing the transfer of certain 
lands in Florida (which had been reserved for militar}^ purposes) to 
the Secretary of the Interior, with the consent of the Secretary of 
War, and their disposition and sale as public lands — belonged to the 
class of "provisions of a local or temporary character" indicated in 
the proviso to section 5596, R. S., anci was therefore not repealed b}^ 
such statutes, but, having remained unexecuted, might legally be 
executed at this time (1878). R. 4I, 215 Apr., 1878. 

I B 1 a. It is well settled that the word "may," in a statute con- 
ferring power upon a public officer, is to be construed as equivalent 

' Since the date of this opinion, the revision of 1874 has been itself revised, under 
an act of Congress of Mar. 2, 1877 (19 Stat. 268), and the re-revision, published in 1878, 
and certified to by the Secretary of State, constitutes "legal evidence of the laws 
therein contained." This second revision, however, is not a new statute, but merely 
a "new edition" of the Revised Statutes of 1874, with additions and corrections. 

Under a joint resolution of Congress, of June 7, 1880 (21 Stat. 308), and an act of 
Apr. 9, 1890 (26 Stat. 50), a supplement to the Revised Statutes was published, by 
which the revision was brought down to Mar. 3, 1891. By a second volume of the sup- 
plement, the revision has been brought down to Mar. 4, 1901. 



LAW T B 1 b. 679 

to "must" or "shall," where the enactment imposes a pubhc dut}', or 
makes provision for the benefit of individuals whose rights can not be 
eflectuated without the exercise of the power. ^ So where the Secre- 
tary of War was "authorized" by an act of Congress to reopen a settle- 
ment previously made wdth a railroad company for Government 
transportation, &c., adjust the same upon a certain stated basis, and 
issue nis warrant on the Treasury for such amount as might be found 
due the company on such readjustment, held that the statute did not 
confer a mere discretionary authority but was mandatory upon the 
Secretary.2 R. 42, 328, June, 1879. 

I B 1 b. The proper construction of appropriation acts providing 
that a certain sum or so much of it as may be necessary, may be 
expended on a certain work for the benefit of the pubhc is, in general, 
if there be no modifj ing clause, that it was the intention of Congress 
that so much of the appropriation as may be necessary for the work, 
shall be expended on it. In such cases it can not be presumed merely 
from the use of the word "may" in the acts that it was the intention 
to vest the one whose duty it is to expend the appropriation, wdth a 
discretion to do or not to" do the work appropriated for. The word 
may have such a meaning but it is not to be inferred from the word 
alone when used in acts of this character. C. 2J^7S, July, 1898. 

I B 2. Wliile there is a distinction between a statute in which a 
public official is "authorized'^ and one in which he is "required" or 
"directed" to perform a certain act, in that a discretion is, in general, 
conferred bv a statute of the former class, vet held, that where the 
President was, by the act of February 23, 1892 (27 Stat., 825), 
"authorized" to issue to an officer of the Army a commission of a 
date prior to his existing commission, the w^ord "authorized" should 
be construed to be mandatory.^ P. 58, 309, Mar., 1893. Similarly 
held that in section 224 R. S"!, which "authorizes" the Secretary of 
War, in case of the loss of a soldier's discharge certificate, to issue a 
duphcate, the word "authorized" means "directed" or "required." 
P. 36, j09, Nov., 1889. Also, where the Secretary of War was 
"authorized" by an act of Congress to sell a portion of a military 
reservation, helcl, that it was evidently contemplated by Congress 
that the sale should be maHe, and that a public duty was imposed 
upon the Secretarv of War, who could not properlv omit to proceed 
with the sale. K 27, 625, Feh., 1869. 

1 B 3. Wliere a statute clearly requires a thing to be done in a par- 
ticular mode and form, the same can not legally be varied from in 
material details by the oflicer charged with the performance.* Thus, 
where Congress appropriated certain funds for a bridge, which, it 
was expressly specified in the act, was to be erected according to a 
certain designated plan which had been recommended for the purpose 
by the Cliief of Ordnance, held, that the construction of the brid.^e in 
accordance with such a plan was a condition to the due expenditure 

• See Minor v. Mechs. Bk., 1 Peters^ 46; Supervisors v. United States, 4 Wallace, 435, 
and cases cited; also Fowler v. Pirkms, 77 111. 271; Kans. P. R. R. Co. v. Reynolds, 
8 Kans. 628; People v. Comrs. of Buffalo Co., 4 Neb. 150. 

2 See concurring opinion of the Solicitor General in 15 Op. Atty. Gen., 621; also 
Supervisors v. United States, 4 Wallace, 435. 

3 See Supervisors v. United States, 4 Wall., 435; Endlicli On the Interpretation of 
Statutes, sec. 309. 

* See Commissioners v. Gaines, 3 Brev., 396. 



680 LAV/ I B 4. 

of the money appropriated, and that the p.an could not legally be 
departed from in the construction.^ R. 28, 664, June, 1869. 

I B 4. It is a uniform principle in the construction of statutes, 
which do not expressly prescribe a different rule, that where time is 
to be computed from an act done the day on which the act is done 
shall be excluded.^ C. 108^, Mar. 2, 1895. 

I B 4 a. In the act of September 26, 1890 (26 Stat. 483), authoriz- 
ing a railroad company to bridge certain navigable waters, it was 
provided that the authority should cease and be inoperative if after 
the expiration of two years the work was not commenced. The work 
was not in fact commenced within the period limited, but on Febru- 
ary 28, 1893, after such period had elapsed, a further act was passed, 
which, without reenacting the former act, simply extended the time 
within which the construction might be commenced and completed. 
Held, that such act had the effect of reviving the former act. P. 59, 
21, Apr., 1893. 

I B 5. Section 3716, R. S., provides that in all advertisements by 
the Quartermaster's Department the statement shall be made that 
preference will be given to articles of domestic production and manu- 
facture, conditions and prices quoted being equal. The Army 
appropriation act of September 22, 1888 (25 Stat. 484), and subse- 
quent similar acts, provide that "after advertising" Army supplies 
"shall be purchased where the same can be purchased the cheapest, 
quality and cost of transportation considered." Held, that the 
appropriation acts do not repeal section 3716, R. S., since the pro- 
vision of that statute is that the statement shall be made in the ad- 
vertisement, and the provision of the Army appropriation acts relates 
only to the purchasing. P. 60, 130, June, 1892. 

1 B 6. Held, that the remarks of members of Congress in a debate 
on a bill as to the purpose of the proposed measure, the reasons for 
adopting the same, etc., do not ordinarily constitute a safe basis for 
the accurate construction of the same after it has become enacted.^ 
R. 37, 656, June, 1876. 

> See concurring opinion of the Attorney General in 13 Op., 78; also, later opinion 
in 20 Op., 653. 

2 See 9 Op. Atty. Gen., 131. 

^ "In expounding a law, the judgment of the court can not be influenced in any 
degree by the construction placed upon it of individual members of Congress, in the 
debate which took place on its passage, nor by the motives or reasons assigned by 
them for supporting or opposing amendments that were offered." Taney, C. J., in 
Aldridge v. Williams, 3 Howard, 24. So, in Lockington's Case, Brightly, 289, it was 
held by the Supreme Court of Pennsylvania, per Yeates, J, as follows: "I regard the 
true meaning of the law, to be collected ex visceribus suis, as the only correct ground 
of decision thereon. It is of no moment, in my idea, how it was treated by different 
gentlemen on the floor of Congress." And see United States v. Union P. R. R. Co., 
1 Otto, 79; Leese v. Clark, 20Cal., 388; Keyport, &c., Co. v. Farmers, Ac, Co., 18 N. 
Jersey Eq., 13; 13 Op. Atty. Gen., 368. But it is said by Mr. Justice Field, in Ho Ah 
Kow V. Nunan, 5 Sawyer, 560, that while "statements in debate can not be resorted 
to for the purpose of explaining the meaning of the terms used," the same "can be 
resorted to for the purpose of ascertaining the general object of the legislation proposed 
and the mischiefs sought to be remedied." 

In an opinion of Aug. 23, 1879 (16 Op., 378), the Attorney General remarks that the 
construction of a statute, when doubtful, may be aided by. a reference to the debate 
when the members concurred as to the purpose of the measure, but scarcely so when 
they expressed different views on the subject. In an earlier opinion (15 Op., 625), 
the Solicitor General, in referring to the general rule (as held in the text), cites the 
case of Bank of Pa. i;. Commonwealth, 19 Pa. St., 156, to the effect that "it is delusive 
and dangerous to admit messages of governors, joumaJs of the legislature, or reports of 
committees to aid in construing statutes." 



LAW I B 7 a. 681 

I B 7 a. In applying the Articles of War to particular cases, a case 
should not be treated as within the penal provisions of an article unless 
it is quite clearly included by the words of description employed. 
R. 87, 199, July, 1876; C. 158U, Jan. 21, 1904. 

IBS. Where an appropriation was made under the act of July 1, 
1898, for the lighting and maintaining in good order of 20 arc lights for 
365 nights at a cost not exceeding 25 cents each per night, held that 
this included authority to make the necessary excavations and exten- 
sion of underground conduits to carry the current for the new lights. 
C. 4641, July 30, 1898. 

I B 9. The act of March 3, 1883 (22 Stat. 459), making appropria- 
tions for the support of the Army, provides in the clause making 
appropriations for the Medical Department that "civilian employees 
of the Army stationed at military posts may, under regulations to be 
made by the Secretary of War, purchase necessary medical supplies 
prescribed by a medical officer of the Army at cost, with 10 per 
centum added." Although the quoted language was in form a 
proviso,^ it in fact neither limited nor excepted from the matter 
preceding it, but was an independent provision. The next appro- 
priation act omitted the quoted language. Held, that the quoted 
language constituted general and permanent legislation.^ P. 4 ^59, 
Aug. 2, I884. 

II A 1. Army Regulations may be divided into three classes: (1) 
Those which have received the sanction or confirmation of Congress ; 
(2) those that are made pursuant to and in execution of a statute, 
and (3) those made, not pursuant to a statute but by the President 
as Commander in Chief of the Army. As to regulations of the first 
class, where the approval of Congress is given to them as regulations 
and is not intended to communicate to them the quality or effect of 
statute law, such approval adds nothing to their le^al effect. R. 39, 
235, Oct. 23, 1877. As to regulations of the second class, while they 
have the force of law so long as they are operative,^ they are, like 
other regulations, subject to the authority of the Executive to 
modify them from time to time, or to waive their operation in par- 
ticular cases.* Held therefore with regard to regulations prescribing 
physical qualifications of candidates for appointment in the Army 
from civillife, under act of March 3, 1911 (36 Stat., 1045), that the 
President could legally waive the same in a particular case. C. 29295, 
Bee. 7, 1911. With reference to regulations of the third class,'^ it 
has been held repeatedly that they are subject to the authority of 

1 See Henry, administrator, v. U. S., 27 Ct. Cls., 142, as to enactment of general 
legislation by provisos. 

^See Army appropriation act for the fiscal year ending June 30, .1866 (13 Stat. 497), 
in which the sale of tobacco to enlisted men, and the sale of stores to officers on credit 
was similarly held to be general and permanent legislation. See also 14 Op. Atty. 
Gen., 681; 10 Comp. Dec, 281; 12 id., 306; 13 id., 429; 14 id., 607. 

3 United States v. Barrows et al., 1 Abbott, 351 (Fed. Cas. No. 14529). 

* See IX Comp. Dec, 280, 284, where is is said: 

"A regulation is usually simply a method of administering a law. Such is the 
regulation in question. It was made to aid you in the administration of this appropria- 
tion and is binding upon your subordinates so long as you do not abrogate or waive it. 
You are at liberty, in my judgment, to change, modify, or waive it at your pleasure, 
always provided that you do not violate some law in your changed or modified regula- 
tion, or by making such change, modification, or waiver you do not encroach upon 
or abrogate some contractual right fully vested before notice of such change, modifi- 
cation, or waiver." See also 24 Ct. Cls., 215, 216. 

* See Lieber on Regulations, War Department Document No. 63. 1898. 



682 LAW II A T a. 

the Executive to change, modify, or waive their operation as the 
public interests may require. Thus lield that the Secretary of War 
could, where the interests of the Government demanded it, dispense 
with the bond required of contractors for military supplies,^ by Army 
Regulations (par. 577 of 1910). C. 2074, Mar., 1896; 17488, Jan. 
30 and May 4, 1905. 

II A 1 a. Held, that the provision of the act of July 28, 1866 (14 Stat., 
338), which, in directing the Secretary of War to prepare and report 
to Congress at its next session a new set of regulations, added, " the 
existing regulations to remain in force until Congress shall have acted 
on said report," meant merely that the same should remain in force 
as regulations; it did not communicate to them the quality or effect 
of statutes. R. 33, 666, Jan., 1873; 37, 4^7, Mar., 1876; 39, 235, 
Oct., 1877. 

This enactment was but temporary, and was not incorporated in 
any form in the Revised Statutes. (It expired at the end of the 
second session of the Thirty-ninth Congress, no code of regulations 
having been reported to that Congress by the Secretary of War as 
required by the act.) Meanwhile the regulations in force in July, 
1866, have been very considerably modified and added to.^ Thus 
there is now existing statutory sanction — such as that of section 1547, 
R. S., in regard to the regulations of the Navy ^ — for the Army Regu- 
lations as a whole. No such sanction, however, or recognition, is 
necessary to give effect to regulations proper. R. 39, 235, Oct., 1877. 

II A i b. Ai'my regulations proper are executive or administrative 
rules and directions as distinguished from statutes.'* A regulation in 
conflict with an existing act of Congress can have no legal effect; if, 
subsequently to the issue of a regulation, an act is passed with which 

1 This does not apply to contracts for public work, as to which a bond is required by 
statute for the protection of labor and material men. 

2 The opinion expressed by the Attorney General (14 Op., 164, 173 — January, 1873) 
that by the act of 1866, "the authority to modify" the then existing army regulations, 
"previously possessed by the Executive," under the act of Apr. 24, 1816, "would 
seem to have been taken away," was apparently not concurred in by the Secretary 
of War, repeated modifications of these regulations having been published in orders 
BiQce (as well as before) the date of this oi^inion. In United States v. Eliason, 16 
Peters, 296, 301, the Supreme Court, referring to the general power of the Executive 
to institute army regulations, observes: "The power to establish implies, necessarily, 
the power to modify * * * or create anew." 

2 This section is as follows: "The orders, regulations, and instructions issued by 
the Secretary of the Navy prior to July 14, 1862, with such alterations as he may 
since have adopted, with the approval of the President, shall be recognized as the 
regulations of the Navy subject to alterations adopted in the same manner." 

* Army regulations are not to be confounded with the "rules for the government 
and regulation of the land (and naval) forces," which Congress is empowered to 
make, by sec. 8, Art. I of the Constitution; these being, of course, statutory rules. 
The use in this section of the word "regulation;" the fact that the published Army 
Regulations contain sundry statutory provisions not distinguished from the mass of 
regulations proper, and embrace also some subjects which seem scarcely withinthe 
scope of executive dii'ection or military orders, but to pertain rather to the province 
of the statute lawj and the further fact that the Army Regulations as a body received 
a special recognition in the act of July 28, 1866 — these circumstances have contributed 
to confuse regulations with statutes much to the embarrassment of the student of 
military law. Regulations proper (unlike articles of war, which are statutes) are 
simply orders and directions made and published to the Army by the President, either 
as Commander in Chief, for the purposes of the exercise of command over the Army, 
or as Executive, for the purposes of the execution of powers vested in him by law. 



LAW 11 Ale. ^ 683 

the regulation conflicts, it becomes' at once inoperative.* R. 38, 255, 
Aug., 1876, and 641, June, 1877; 53, 7, Sept., 1886; P. 43, 422, Nov., 
1890; 49, 276, Sept., 1891; 60, 471, July, 1893; 65, 187, June, 1894. 
C. 1572, July, 1895; 1939, Dec, 1895; 2065, Feb., 1896; 3305, Feb. 
10, 1898; 18356, July 28, 1905; 20444, Oct. 2, 1906. 

II A 1 c. An authority which can legally be vested by legislation 
only can not of course be conferred by an executive regulation. 
Thus Jield, that the expenditure of the proceeds of the sale of articles 
manufactured by the prisoners at the military prison, such proceeds 
being pubHc funds, could not properly be the subject of an Army 
regulation. R. 42, 24, Oct., 1878. 

II A 1 d. There is a large mass of matters over wliich the Executive 
would have jurisdiction if Congress, with its superior jurisdiction 
(under the constitutional power to raise armies and to make rules for 
the government and regulation of the land and naval forces) had not 
occupied the field. In all such cases, to the extent that Congress 
regulates the subject, the power of the Executive to act in regard to 
it is taken away. Thus Congress, by section 1102, R. S., prescribed 
that each Cavalry regiment shall consist of 12 troops. To 
"skeletonize" some of these troops — that is, to discontinue them for 
a time — would be practically to change the statutory organization, 
and whether this can be done by executive order, in the absence of 
statutory authority, is open to serious doubt. C. 3606, Oct., 1897. 

II A 1 e (1). There is no statutory authority for making a regula- 
tion placing civilian employees of the Government on the same 
footing as discharged soldiers with regard to rations wliile under 
treatment in hospital, but neither is there statutory authority for 
the regulation in regard to discharged soldiers. The best that can 
be said of such regulations, like the orders of the War Department 
for issue of rations to sufferers from flood and famine, is that they 
are founded on a kind of necessity. Undoubtedly^ they should be 
authorized by statute. C. 9491, Dec, 1900. 

II A 1 f . Held, that the Army Regulations, like statutes, are not to 
be given a retroactive effect unless the language used clearly requires 
it. P. 28, 260, Nov., 1888. 

II A 1 g (1). It is questionable whether the somewhat restricted 
power vested in the President to prepare and promulgate regulations 

' As illustrating the distinction between statutes and regulations, and the principle 
that regulations can have force only so far as they are not inconsistent with the statute 
law, see United States v. Webster, Daveis, 38, 56-59, and 2 Ware, 46, 54-60; Boody 
V. United States, 1 Wood. & Minot, 150, 164; McCall's case, 5 Phila., 259; In re 
Griner, 16 Wis., 447; Magruder v. United States, Devereux (Ct. Cls.), 148; 1 Op. 
Atty. Gen., 469; 4 id., 56-63, 223, 225-7; 6 id., 10, 211, 215, 357, 365; 8 id., 335, 343; 
11 id., 251, 254; O'Brien, 31; also 22 Op. Atty., 54. 

As to the inferior force and obligation of the British Army Regulations as com- 
pai-ed with the Mutiny Act (and Articles of War thereby authorized), see Samuel, 
193-197. Clode (Mil. & Mar. Law, p. 55) illustrates the natiu-e of these regulations, 
in noting that originally, "each colonel had his own standing orders — no general 
regulations being m existence — for the discipline and exercise of his regiment." 

That regulations promulgated through the Secretary of War are to be "received as 
the acts of the Executive," — see United States v. Elia'son, 16 Peters, 291, 301; United 
States V. Webster, Daveis, 38, 59; United States v. Freeman, 1 Wood. & Minot, 45, 
50-51; Lockington's case, Brightly, 288; McCall's case, 5 Phila., 289; In inatter of 
Spangler, 11 Mich., 298, 322. 

See also, for an exhaustive discussion of this subject and citation of authorities, 
"Remarks on the Army Regulations and Executive Regulations in General," by 
G. Norman Lieber, Judge Advocate General, U. S. Army, War Dept. Document No. 
63 1898. 



684 , LAW OF WAR LICENSE. 

in furtherance of statutes can be construed to extend to subjects the 
control of wliich is expressly vested in Congress by the Constitution, 
but in respect to which that body has failed to legislate. Such an 
exercise of power to legislate in the form of executive regulation is 
at least of doubtful validity and should not be attempted. C. lJi749, 
June 1, 1903. 

CROSS REFERENCE. 

Construction directory See Volunteer Army I V D 1 a (2) (6) [2], 

Enlistment I A 9 f (5). 

Construction, general xvords following spe- 
cial See Appropriations XI. 

Construction mandatory See Volunteer Army I V D 1 a (2) (6) [1]. 

Construction, reasonable See Retirement II A 4 c. 

Construction, remarks before congressional 
committee See Appropriations LXIV. 

Enemy's, during v>ar See War I C 7 a. 

Military government See War I C 8 a (1) to (2). 

Operative on reservations See Public property V H to I. 

Pardon, violation of State See Pardon III B. 

State considered by military commission. . . .See War I C 8 a (3) (e). 

State forbidding soldiers carrying arms is 
inoperative See Government agencies V. 

LAW OF WAR. 

See War I C to D. 
Martial law See War I E to D. 

LEASE. 

See Public property VII to VIII. 

Abrogation of. See Claims VII C 3. 

Fraudulent See Articles op War LX A 5. 

Quarters, heat, and light See Pay and allowances II A 1 d (1) ; (2). 

Implied See Claims IV. 

Land See Militia VI B 2 a. 

Navigable waters X D 2. 

Maneuvers See Claims XII L. 

Provision for repairs See Public money XI. 

Public property to private persons See Tax III E. 

Target ranges for militia See Militia VI C 1 c to d. 

LESSER INCLUDED OFFENSE. 

See Desertion XI. 

Discipline XV F 2. 
Finding of. See Discipline XII A 6 to 7. 

LETTERS. 

See Communications II A 1 to 4. 
Part of bids See Contracts VI F. 

LICENSE, 

See Public property VIII to IX. 
Ex-soldiers not exempt from for peddling. . .See Tax I G. . 

Local for selling See Tax III M. 

Occupy public land See Public property I B. 

Residence, retired soldier on reservation See Retirement II B 4 b. 

Revocable See Public property I A 2. 

River and harbor work See Navigable waters X E to F. 

Theater ticket. See Uniform I B 2 a. 

Trade in Indian country See Intoxicants III B . 



LIEN LINE OF DUTY: SYNOPSIS. 685 

LIEN. 

Admiralty See Claims VI F. 

Labor can not have, on public property See Contract XX A. 

On icreckjor cost of removal See Navigable waters YII C 1; 2. 

Taxes on land See Tax III B. 

IIFE-SAVING MEDAI. 

See Insignia op merit I B. 

LINEAL RANK. 

See Rank III to IV. 

LINE OF DUTY. 

I. OFFICERS. (See Retirement.) 
IL ENLISTED MEN. 

A. Rule — Disability is in line op ditty unless surgeon knows to con- 
trary Page 686 

1. Surgeon and company commander must investigate cause. 

a. Misconduct not required to render cause not in line of duty. 

b. Contributory negligence. 

(1) Rule of ordinary prudence. 

(2) Rule of gross carelessness. 

(a) Negligence short of culpable contributory negli- 
gence. 

c. Athletic sports. 

(1) Line of duty statue. 

d. Prisoner (line of duty status) Page 687 

(1) Insanity cause of confinement. 

e. When absent. 

(1) Pass (line of duty status). 

(a) Unauthorized act. 

(2) Hunting pass Page 688 

(3) Furlough (not line of duty status). 

2. Pension law. 

a. Rule — law beneficial, therefore liberal construction. 

(1) Rule of gross carelessness. 

(2) Rule of infraction of discipline. 

(a) Offense serious. 

(6) Offense not serious. , 

[1] Soldier frozen Page 689 

[2J Accidental discharge of gun. 

(3) Prisoner. 

(4) Wlien absent. 

(a) Furlough not duty status. 

[IJ Sick furlough — duty status Page 690 

[2] Veteran furlough. 

3. Resection law. 

a. Surgeon General decides whether disability is in line of duty. 

(1) But can not divest persons of right to claim artificial 

limb. 

(2) Applies to mechanics, etc., at arsenals. 

b. Rights accrue triennially. 

4. Bounty laws Page 691 

a. Legislative rule in act of April 12, 1866. 
III. ACT OF MAY 11, 1908 (35 STAT. 108). (See Gratuity.) 



686 LINE OF DUTY II A. 

II A. Held, that the rule may be followed which was laid down in a 
circular dated May 11, 1893, from the Surgeon General's Office, as ap- 
proved by the Secretary of War, which provided that ''It is just to 
assume that all diseases contracted or injuries received while an officer 
or soldier is in the military service of the United States occur in the line 
of duty unless the surgeon knows, first, that the disease or injury existed 
before entering the service; second, that it was contracted while absent 
from duty on furlough or otherwise; or third, that it occurred in conse- 
quence of willful neglect or immoral conduct of the sick man himself. "' 
C. 2Jf7Jf, Aug. 3, 1896. 

II A 1. In a case of alleged disability the company commander and 
post surgeon are required to investigate the circumstances connected 
therewith and to determine, as a result of such investigation, whether 
the disability was or was not incurred in the line of duty.^ Held, that 
such a determination of fact reached by military officers in the per- 
formance of their duty would under ordinary circumstances be 
regarded as conclusive, provided, always, that when possible the man 
has been accorded a hearing. C. 13077, Aug. 26, 1092; 17202, Dec. /, 
190J^. 

II A 1 a. Disability, though not caused by misconduct, may be 
caused by something outside of the line of duty, as, for instance, loss of 
life while trying to save another's life. C. 101, July 28, 1894; 12423, 
Apr. 19, 1902. 

II A 1 b (1). In cases of apparent contributory negligence, held, that 
the disability is in line of duty if the soldier has used that reasonable 
degree of care and diligence which a man of ordinary prudence and 
capacity might be expected to exercise under the same circumstances.^ 
a 12370, Apr. 21,1902. 

II A 1 b (2). Held, that the rule with respect to contributory negli- 
gence can not be applied in all its strictness in determining the ques- 
tion whether a soldier's injuries have been received in the line of duty, 
but that injuries caused by gross carelessness are not in line of duty. 
Held, further, that beyond this it is not safe to lay down any rule, but 
best to leave each case to be determined upon its own merits. 0. 2474, 
Aug. 3, 1896. 

II A 1 b (2) (a). Held, that certain acts may, in a measure, be con- 
tributory causes of disability and yet not to such a degree as to bring 
the case within the general rule of contributory negligence, as when 
the disability is the result of negligence, but the negligence is not of 
such a degree as to amount to culpable contributory negligence. C. 
2658, Oct. 15, 1896; 2474, Aug. 3, 1896, and Feh. 7, 1907. 

II A 1 c. Encouragement of athletic pursuits as a part of the train- 
ing of the Army has advanced by long strides during recent years. A 
soldier's physical as well as moral welfare are benefited thereby. 
Among athletic contests there is no game more encouraged as tending 
toward military training and the proper military spirit and the under- 

^ See footnote, p. 99, Manual for Courts-Martial, Revised Edition, 1908. 

^ They should remember that if possible they are to record facts, and that their 
opinions are only e^ddence which is neither conclusive nor exclusive proof. See 7 
Op. Atty. Gen.,165. 

^ Am. and Eng. Enc. of Law, vol. 7, p. 380, note 1. 

See VI, Comp. Dec, 794, in which it was held that a soldier's death caused by his 
attempt to "run the guard" was not in the line of duty within the meaning of the 
act of Mar. 3, 1899(30 Stat. 1070), which provides for the transportation and burial of 
remains. 



LINE OF DUTY II A 1 d. 687 

standing of discipline than the game of football. Held, that injuries 
received in athletic sports properly indulged in by officers and enlisted 
men while in camp or garrison are incurred in the line of duty. Held, 
further, that in view of the fact that football is a contest which requires 
return games, a soldier's status wliile engaged in such return game 
away from the reservation is as much that of line of duty as though he 
were playing on the parade ground of his own post. Held, therefore, 
that if he should be disabled in a duly authorized football game away 
from his reservation such disability would be in line of duty. U. 
2439s, Feb. 13, 1909. 

II A 1 d. A soldier is not taken out of the line of duty by the fact of 
his being in arrest or confinement, even though that is not the kind 
of military duty for which he was enlisted.^ Thus, lield, that a mil- 
itary prisoner who incurred a disability wliile aiding the guard in 
suppressing a mutiny incurred liis disability in line of duty. HeM 
also that if the prisoner incurs disability while at work, without con- 
tributorv negligence, it would be in line of duty. Held also that 
if the prisoner becomes disabled simply as a result of the confine- 
ment (for example, rheumatism), it is in line of duty. A deserter 
who had surrendered and was being conveyed as a prisoner on board 
a Government transport was killed by the explosion of the boilers. 
Held, that his death occurred in the line of duty. C. 2658, Oct. 15, 
1890; 3063, Apr. 1, 1897. 

II A 1 d (1). A soldier who was confined in the guardhouse brooded 
over his confinement until he became insane. The surgeon marked 
the insanity "not in line of duty " for the reason that the insanity was 
due to the confinement and the confinement was due to the soldier's 
misconduct. Held, that the insanity was in line of duty and that to 
urge that it was not in line of duty because he was confined due to 
liis own misconduct, would be no more reasonable than to hold that 
he was confined because of original sin, i. e., that as a cause for the 
insanit}'' the misconduct was too remote. C. 25809, Nov. 20, 1909. 

II A 1 e (1). It is an essential incident in the operation of a ''pass" 
that the permission to be absent should not be for more than 24 
hours, i. e., for such a length of time as to operate to remove the 
soldier from the possibility of being called for the performance of 
the more important duties for wliich he is expected to hold himself 
in constant readiness. Men on pass are thus not removed from the 
list of those who are ''present for duty" on the rolls. Held, there- 
fore, that to regard a man on pass as "absent \vith leave" or "on 
furlough" would work a serious injury in respect to the soldier who 
is in the immediate neighborhood of the post and subject to call for 
duty if needed, and whose status therefore while on pass is, in the 
general case, in line of duty. C. 15600, Dec. 10, 1903; 2658, Oct. 
16, 1896; 17202, Dec. 1. 1902; 23666. Sept. 21. 1909, and Sept. 8, 
1910; 24393, May 7. June 1, and Oct. 3, 1910; 26949, June 23, 1910. 

II A 1 e (1) (a). An enlisted man wliile on pass for the purpose of 
batliing, discharged a borrowed .22-cahber rifle and was thereby 
injured by the blowing open of the breech block. Held, that although 

' See VI Comp Dec, 453, in which it was held that a soldier in confinement senang 
sentence is not on duty for the purpose, if he dies, of having his remains after inter- 
ment at Government expense, exhumed and transported und^er the act of Mar. 3, 1899 
(30 Stat. 1070), which makes provision in case of death on duty, in ^he field, or a*- 
military posts, or on the frontiers, or when traveling under orders. 



688 LINE OF DUTY II A 1 e (2). 

he was in a status of duty the act was unauthorized and the resulting 
disabihty was not incurred in hne of duty. C. 2658, Mar. 25, 1910. 

II A 1 e (2). What are known as "hunting passes," which are 
provided for in Army Regulations, are privileges for the purpose of 
hunting game, the purpose of which is principally instruction in 
small-arms practice. Held, that this status falls witliin the description 
of duty in respect of any injuries received or disabilities incurred 
wliile so engaged. Held, further, that the character of the instrument 
with regard to "line of duty," in the operation of which the soldier 
absents himself, should be determined by the duration of the absence 
and the status created rather than bv its name. C. 15600, Dec. 10, 
1903; 23666, Sept 8, 1910; 24393, Oct. 3, 1910. 

II A 1 6 (3). Held, that a soldier when on furlough may be in line 
of duty as when en route to his station, or when during his furlough 
he is, in compliance with orders, on his wav to a place to report his 
whereabouts.! C. 2658, Oct. 15, 1896. 

II A 2 a. The term employed in the pension laws — "in the line of 
duty" — is much more comprehensive than the term "on duty," as 
used in the thirty-eighth article of war. Its application is not lim- 
ited to a status of actual present performance of some specific military 
duty, but it relates to a condition under which military duty may be 
regularly performed in contradistinction to a condition inconsistent 
with the performance of any ordinary duty — such as the condition 
of being on leave of absence or of being retired. These laws being 
beneficial in their character, the term is to be construed so as to 
advance the benefit rather than to restrict it.^ R. Jf.1, 257, June 10, 
1878; 51, 347, Jan. 13, 1887; 0. 3063, Mar. 31, 1897: 14627, May 8, 
1903. 

II A 2 a (1). Held, that gross carelessness by a soldier renders his 
title to a pension from an injury resulting from such carelessness 
questionable on the ground of contributory negligence. 0. 2474, 
Aug. 3, 1896. 

II A 2 a (2) {a). Two soldiers engaged in a scuffle, in which one 
was permanently injured. Held, that the scuffle was not in the per- 
formance of military duty, but was in fact an infraction of military 

^ See VI Comp. Dec. , 343, in which it was held that the death of a soldier on furlough 
was not "on duty " within the meaning of the act of Mar. 3, 1899 (30 Stat. 1070), which 
provided for interment at public expense. But see XII Comp. Dec, 562, in which 
it was held that if a furlough is terminated by a competent order to enter a hospital 
as a patient the expense of the treatment is authorized under the acts of Apr. 23, 1904 
(33 Stat. 272), and Mar. 2, 1905 (33 Stat. 838.) 

2 See 1 Op. Atty. Gen., 182; 7 id., 166. 

The most satisfactory definition of line of duty given, was by the Hon. Caleb Gush- 
ing, Attorney General, in his exhaustive opinion on line of duty with regard to pen- 
sions, which reads as follows: "He who contracts disease or dies in consequence of 
the ordinary performance of his military duty, or in the performance of any special 
act of military duty, whether at the moment of performance he was on duty or off 
duty, in active service, or on furlough, of habits virtuous or habits vicious, gallantly 
fighting his country's enemy or expiating an offense in the guardhouse or prison 
bay, he, I say, who in this or under other circumstances contracts disease in the per- 
formanceof anactof duty contracts it "in the lino of duty." (7 Op. Atty. Gen., 161.) 

See also 17 Op. Atty. Gen., 173, in which the Attorney General states that as Con- 
gress, since the publication of the above opinion of Attorney General Cushing, has not 
seen proper to substitute any other expression "we are justified in concluding that it 
stands in the statutes invested with the meaning expx'essed by Mr. Cushing." 

The Interior Department ordinarily decides for itself whether, for pension purposes, 
a death or disability was incurred in the line of duty. 



LINE OF DUTY II A 2 a (2) (b) [l]. 689 

discipline within the meaning of the twenty-fourth article of war 
and the sixty-second article of war, and that the injury was not in- 
curred in the line of duty for pensionable purposes.^ U. 13017, July 
25, 1902; P. 58, 10, Feb. 8, 1893; 61, 188, Aug. 25, 1893; C. 13067, 
Aug. 14, 1902; 13357, Sept. 24, 1902; 26696, May 10, 1910; 25748, 
Mar. 14, 1911. 

II A 2 a (2) (b) [1]. A soldier went outside of the reservation 
line to mail a personal letter, and was frozen so badly that he was 
permanently disabled for the performance of his duty. Held, that 
the infraction of discipline on the soldier's part for leaving the reser- 
vation is not of such a degree as to amount to culpable contributory 
negligence, and that the disability was incurred m line of duty for 
pensionable purposes.^ O. 13077, Aug. 26, 1902. 

II A 2 a (2) (6) [2]. Held, that a pistol-shot wound caused by the 
accidental discharge of the weapon while the soldier was engaged 
in cleaning the same for use in the performance of special duty, being 
unattended by contributory negligence, was in the line of duty for 
pensionable purposes. G. 2474, Aug. 3, 1896. 

II A 2 a (3). As it is a part of the military duty of a soldier to 
submit to such punishment as may be awarded him for the commis- 
sion of a military offense, held, that he is not necessarily out of the line 
of duty when in confinement. Held, further, that if he receives an 
injury which was in fact a casualty of the service not incurred by 
his own fault or negligence pending such confinement his claim for 
pension should not be prejudiced.^ R. 4I, ^57, June 10, 1878; 0. 
3063, Mar. 31, 1897; 14627, May 5, 1903. 

II A 2 a (4) (a). A soldier, while on furlough, became perma- 
nently disabled for the performance of his duty. Held, that m view 
of the provision of section 4694, R. S., the disability was not incurred 
in line of duty for pensionable purposes, since the soldier was not, at 
the time, in the field, on the march, at a post, fort, or garrison, or en 

^ See 2 Op. Attj^. Gen., 589, also 7 id., 153, in which it was held that "No man, it 
is clear, is acting in the line of duty, while the act he performs is a violation of his 
duty," but also held in same opinion that a soldier "who is laboring under all the 
worst effects of vicious indulgence, and subject to die at any moment of disease occa- 
sioned by that cause, may yet happen to die of other disease contracted, or by cas- 
ualty occurring, or of injury received while indubitably in line of his duty; and so 
transmit a right to pension." 

2 See 7 Op. Atty. Gen., p. 166, where it was said: "If called upon to suggest any rule 
for the guidance of his discretion in the matter, it would be obvious for you to say that 
the pension laws are beneficial in their nature, and therefore to be construed bene- 
ficially in matters of inevitable doubt. In this view, it seems to me, not that the 
mere fact of an officer having died in the service, and with utter absence of proof as to 
the origin or cause of his death, suffices to raise a pension; but. that where the proofs 
are balanced, and it is impossible to determine by them as to the fact of 'disease con- 
tracted,' and the fact of 'line of duty,' found in juxtaposition, whether this collocation 
be of contiguity only, or of actor and subject, of contemporaneity or sequence, only, 
or of cause and consequence, it would be reasonable to presume in favor of the pen- 
sion; and also to presume in favor of the pension in cases where the line of duty 
appears to enter potentially into the causes of the death, although it should happen 
not to be certainly provable that it was the exclusive or predominant cause, so that a 

{)ossible error of absolute and mere uncertainty shall not be suffered to defeat the 
iberal intentions and beneficial policy of the Government." 

' See 7 Op. Atty. Gen., 154, in which it was held that a soldier "under arrest" or 
"in confinement" is not discharged from the obligation of duty, and is occasionally 
called upon to perform duty in which he may distinguish himself, and die honorably; 
and leave a right of pension to his widow or children. 

93673°— 17 44 



690 LINE OF DUTY II A 2 a (i) {a) [l]. 

route, by direction of competent authority, to some post, fort, or 
garrison.! G. 13357, Sept. 29, 1902; 26949, June 23, 1910. 

II A 2 a (4) (a) [1]. It has uniformly been ruled, in the adminis- 
tration of the pension laws, that a soldier absent from his command 
on siclc furlough remained "in the line of duty." So, in the case of a 
volunteer soldier who had been given a sick furlough for twenty days, 
and was disabled by the kick of a horse so that he could not return, 
held, that if the disability was incurred before the expiration of his 
furlough, he was then "in the line of duty" within the meaning of 
the act of March 2, 1889 (25 Stat. 869), providing for the removal 
of the charge of desertion in certain cases. P. 44f 4^^i Jan., 1891. 

II A 2 a (4) (a) [2.] Section 4700, R. S., puts enlisted men "on 
veteran furlough with the organization to which they belong" upon 
the same footing as men on sick furlough. So, held, that a volunteer 
soldier furloughed with the rest of the organization to which he 
belonged might also properly be considered as "in the line of duty," 
while absent from his command on such furlough, within the mean- 
ing of the act of March 2, 1889. P. 47, 448, June, 1891. 

II A 3. Section 4787, E. S., and the acts of August 15, 1876 (19 
Stat. 203), February 27, 1877 (19 Stat. 252), and March 3, 1891 
(26 Stat. 1103), provide that artificial hmbs shall be issued in cases 
of injury in line of duty. Held, that under these laws the Surgeon 
General is specifically designated as the authority to pass on the 
question for this purpose of deciding whether the disability was or 
was not incurred m Ime of duty. C. 24221, Bee. 15, 1908, and Jan. 
16, 1909. 

II A 3 a (1). Held, that the act of August 15, 1876 (19 Stat. 203), 
authorizing the Surgeon General of the Army to prescribe regulations 
under which persons shall receive artificial limbs, etc., referred only 
to regulations auxiliary to the act and designed to give it effect, 
and did not empower him to divest persons of the right of prosecut- 
ing claims for the same. E. 49, 225, July, 1885. 

II A 3 a (2). The description, "hired men of the land forces," 
employed in the act of February 27, 1877 (19 Stat. 252), amending 
section 4787, R. S., may properly be construed to include the me- 
chanics and laborers employed at arsenals by the authority of the 
provisions of Title XVII of the Revised Statutes. R. 39, 316, 
Nov., 1877. 

II A 3 b. Held, that the effect of section 4787, R. S., as amended 
by the act of March 3, 1891 (26 Stat. 1103), was as follows: 1. All 
persons entitled to be furnished by the War Department with arti- 
ficial limbs or apparatus for resection, in whose cases three or more 
years (and less than five years) had, on March 3, 1891, fully elapsed 
since the date of their last legal receipt of a Hmb, etc., became entitled, 

* See 7 Op. Atty. Gen., 154, in which it is held that a soldier, while absent by author- 
ity may occasionally be called upon to perform duty and thereby acquire a pensionable 
status. On page 163 of same opinion it is held that: 

"When it is remembered that no commissioned officer or enlisted soldier, seaman, 
or marine has power to cast off his obligation at will; that whether he be on duty or 
off, in glory or in disgrace, still the banner of his country is over him and its oath upon 
his conscience; when this great fact shall be remembered, it must be inevitable to 
concede that any rule, based on the assumjstion of its being impossible for an officer 
or soldier on furlough, on leave of absence, in arrest, undersentence, to perform acts, 
suffer casualties, receive wounds, or incur causes of disease in the line of his duty, is 
not a truth, und, like all things not true, can not be conformable to justice or wisdom." 



LINE OF DUTY II A 4. 691 

on said March 3, 1891, to receive at once a new limb, as of the end of 
the third year from such receipt, and further to receive another new 
limb at the end of three years from the completion of said third year, 
and so on. 2. All persons who have received a limb, etc., on March 3, 
1888, or on any subsequent date prior to the date of the act of March 
3, 1891, became entitled to a new limb on March 3, 1891, or other 
date three years succeeding such receipt, and again on March 3, 
1894, or at the end of a further three years, and so on. 3. The act 
of 1891, being prospective in terms, can not be construed as operat- 
ing retrospectively or as authorizing a revision of former quin- 
c[uennial receipts or money payments as their equivalents. 4. There 
i^ nothing in the amending act of 1891 to repeal, or affect the opera- 
tion of, the provisions of section 4788 or 4790, R, S,, in regard to 
pajTuents of money in lieu of delivery of limbs. These provisions 
are held clearly to apply to triennial rights equally and in the same 
manner as they applied to quinquennial.^ P. JfB, 58, Mar., 1891. 

II A 4. Formerly the expression "line of duty" was more strictly 
construed than latterly, but the earlier construction has not been 
adopted in practice. By section 4 of the act of March 3, 1865 (13 
Stat. 488), it was provided ''that every noncommissioned officer, 
private, or other person, who has been or shall hereafter be dis- 
charged from the Army of the United States by reason of wounds 
received in battle, or skirmish, on picket, or in action, or in the line of 
duty shall be entitled to receive the same bounty as if he had served 
out his full term." And by an act approved April 12, 1866, it was 
declared, "that the true intent and meaning of the words 'or in the 
line of duty,' used in the fourth section of the act approved March 
3, 1865, * * * requires that the benefit of the provision of said 
section shall be extended to any enlisted man or other person entitled 
by law to bounty who has been or may be discharged by reason of 
a wound received while actually in service under military orders, not 
at the time on furlough or leave of absence, nor engaged in any 
unlawful or unauthorized act or pursuit." For the purpose of the 
earlier legislation this legislative construction is conclusive, but it 
is not necessarily so in determining the soldier's condition or military 
status in other cases; for example, as to his right of admission to 
the soldiers' home. A further limitation has been in practice rec- 
ognized, viz, that the disability must not be the result of the unlawful 
or unauthorized act as a direct or contributory cause. The prin- 
ciple as stated in the act of April 12, 1866, modified by the limitation 
just stated, is as accurate a general statement of the meaning in 
military administration of the expression "in the fine of duty" as 
can be given. It is, however, subject to exceptions. C. 2658, Oct. 
15, 1896. 

CROSS REFERENCE. 

See Gratuity I A to B. 

Determined by retiring board See Retirement I B 2 d; e. 

Disability contracted in See Discharge V A; XX D i. 

Finding by examining board See Retirement I B 6 b to d. 

Insanity See Discharge XIII D 4 a. 

Insanity I D. 

Pass See Claims VIII. 

Sick soldier retained in service See Enlistment I B 2 i. 

Status of See Absence I B 1 b (1). 

1 Compare 20 Op. Atty. Gen., 83. 



692 LIQUIDATED DAMAGES MARITIME CAPTURE. 

LIQUIDATED DAMAGES. 

See Contracts XVIII to XX. 

LOAN. 

Company-fund money not authorized See Government agencies III A 3. 

Money at usurious rates See Civilian employees XVI A. 

Property to militia not authorized See Militia IX C ; XVI I 5; 6. 

LOSS OF RANK. 

See Rank II A3 a tod; III A; V toVI. 

Failure in promotion See Retirement I B 6 c to d. i 

Pardon of. See Pardon IV to V. 

Rank II A 3 b to c. 
Suspension, effect on pay See Pay and allowances III A 2 a. 

MACHINE-GUN PLATOON. 
Militia See Militia III C. 

MAKE GOOD TIME LOST. 

See Articles of War XLVIII A to F; 
cm F4. 
Absence II B 9; 9 a. 
Desertion XV B 2. 
Discharge after See Discharge XIII B 1. 

MALPRACTICE. 

See Articles of War LXII D, 
MANEUVERS. 

Damage to property during See Claims II. 

Lease of land for See Claims XII A. 

Liquor at See Intoxicants II D. 

Post exchange at See Militia XV A. 

MANSLAUGHTER. 

See Articles OF War LXII B; F; CIIC2. 
Punishment for See Articles of War XCVII E. 

MARINE CORPS. 

Enlistment of deserter from See Enlistment I A 9 e. 

Previous service iri See Enlistment I D 2 b. 

Discharge VI D 7. 
Retirement of soldier , ... See Retirement II A 2. 

MARINE OFFICER. 

Eligibility to command See Command IB; IV A. 

Articles of War CXXII A. 
Trial of See Articles of War LXXVIII A. 

MARITIME CAPTURE. 

See Claims VII F. 



MARRIAGE MESS SERGEANTS. 693 

MAERIAGE. 

Enlisted men See Command V A 2 a. 

Polygamous See Articles of War LXI B 12. 

Refusal of soldier to contract See Articles op War XXI C 2 b. 

MAKRIED MAN. 

Ben^ciary of. See Gratuity I B 1; 4. 

Enlistment of See Enlistment I A 9 f (7) (a); 10; 11. 

MARRIED WOMEN. 

As surety See Bonds I M 14. 

Removal from post See Command V A 3 d (2). 

MARTIAL LAW. 

See War I E to F. 
See Army II I 3 b. 

MEDAL OF HONOR. 

See Insignia of merit I A to B. 
MEDALS. 

See Insignia of merit I to II. 

MEDICAL DEPARTMENT. 

See Army I G 3 d to h. 

Appointments to See Office III A 1 c (2); 6 c. 

Rank I B 1 c to a. 
Examination of officers See Retirement I B 6 c (4); 7 a. 

MEDICAL RESERVE CORPS. 

See Army I G 3 d (3) to (4). 
MEDICAL SERVICE. 

Absentees See Claims VIII. 

Militiaman See Militia VI B 1 e (4); (5). 

MEMBER OF COURT OR BOARD. 

See Discipline VI A to G 3. 

Retirement I B 1 d (1). 

As witness See Discipline X A 2. 

Detail of. See Articles op War LXXII D 1. 

Discipline III C 1 a to f . 

MESS. 

Officers See Army I G 3 b (3) (a) [1]. 

Intoxicants II C. 

MESS SERGEANTS. 

Detail of, in Hospital Corps See Army I G 3 d (5) (6). 



694 MEXICO MILITAKY INSTEUCTION : SYNOPSIS. 

MEXICO. 

Arrest of deserter in See Desertion V F 8. 

Extradition See Desertion IV A; B. 

Extradition II to III. 
Neutrality See Army II K to L. 

MILEAGE. 

See Pay Manual. 

Appropriations for See Appropriations XIX. 

Cadets not entitled to See Army I D 5. 

MILITARY ACADEMY. 

See Residence. 
Army I D to E. 

Appointments from See Office III A 1 a; 6 a (1). 

Appointments for See Appropriations XXII. 

Appointments to See Office III A 4 a. 

Bond of treasurer See Bonds II P. 

Hazing See Army I D 3 b (2) (a). 

Leaves of instructors See Absence I B 1 g (1). 

Master of the sword See Office III E 3. 

Rank II C 1. 

MILITARY ATTACHE. 

Sntertainment of, at State camp See Militia VI B 1 e (9). 

MILITARY COMMISSION. 

See War I C 8 a (3) to (4). 

Copy of record to accused See Articles of war CXIV A. 

Jurisdiction of See Discipline III E 3 b. 

Porto Rico See Appropriations LXI. 

MILITARY CONTROL. 

Volunteers after muster out of organization. .See Volunteer Army IV C to D; D2 a (3). 

MILITARY COURTS. 

See Discipline. 
Appropriations for See Appropriations XXV. 

MILITARY GOVERNMENT. 

Bonds of officers under See Bonds II O. 

Civil administration during See Claims VII E. 

Customs See Public money II. 

Law ofivar See War I C 1; C 8 to 9. 

Regular officer holding civil office See Office IV A 2 e (6) to (7). 

MILITARY INSTRUCTION. 

I. OF THE ARMY. 

A. At United States Military Academy. (See Akmy I D to E.) 

B. At Service Schools. (See "Absence.") 



MILITARY INSTRUCTION II B 1 a. 695 

II. OF CIVILIANS. 

A. Op the National Guard. (See "Militia.") 

B. Of College Students. 

1. Details of Army officers to colleges. 

a. Retired officers Page 695 

b. More than one officer may be detailed. 

c. Private schools not included. 

d. May be detailed in Philippines. 

' e. Single detail limited to four years. 

f. Retired officers may be detailed to high schools Page 696 

g. May be detailed in Porto Rico. 

2. Furnishing arms, etc. 

a. Fiu"nished only to colleges to which officers have been detailed. 

b. Governor should approve requisition. 

c. The responsible officer must render returns. 

d. Rights of U. S., protected if arms are damaged Page 697 

e. Return of arms. 

(1) Letter signed by Chief of Ordnance. 

II B 1 a. Held, that the Umitation placed by section 1225 R. S., 
as amended by the act of November 3, 1893 (28 Stat. 7), on the 
lumber of officers who may be detailed as instructors at colleges is 
lot exclusive of retired officers.^ R. 37, 201, Bee, 1S75. 

II B 1 b. Held, that more than one officer may be detailed at the 
>ame time to one institution. C. 23701, Aug. 11,, 1908. 

II B 1 c. The act of September 26, 1888, chapter 1037, in amending 
section 1225, R, S., authorizes the detail of officers and issue of 
arms to "any established mihtary institute, seminary or academy, 
college or university." Held, that the term "estabhshed, " con- 
strued in connection with the terms of the previous legislation on 
this subject, was to be interpreted as including incorporated institu- 
tions or those estabhshed by law, such as State institutions, and 
that an unincorporated private school or other institution of learning 
was not to be regarded as "established" in the sense of tliis statute. 
Thus, Tield, that an unincorporated academy, owned and controlled 
by a partnership, was of the class of private institutions to which 
a detail of an officer as professor, or an issue of ordnance, could 
not legally be made. P. 6^, U2, Apr., 1894; 65, 67, May, 1894. 

II B 1 d. Under section 1225, R. S., officers of the Army may be 
detailed for duty at a college or university in the Philippine Islands. 
C. 16485, June 21, 1904. 

II B 1 e. The act of November 3, 1893 (28 Stat. 7), restricts the 
tour of college duty to four years. Held, that neither an active 
nor a retired officer can be employed for a longer period than four 
consecutive years under a single detail to college duty, and that 
such four years' detail dates from the original assignment of the 
retired officer to college duty. During the continuance of his detail, 
however, he may serve at one or more than one college, but the 
aggregate period of service comprised witliin the "detail," as that 

' Under sec. 1225 R. S. 30 officers could be detailed. This was increased by the 
act of Sept. 26, 1888 (25 Stat. 491), to 50 from the Army and 10 from the Navy; by 
the act of Jan. 13, 1891 (26 Stat. 716), to 85; and by the act of Nov. 3, 1893 (28 Stat. 
7), to 110, including 10 Navy officers. 



696 MILITAEY INSTEUCTION II B 1. 

term is used in the Act of November 3, 1893, must be limited to 
four years.^ 

Held, also that the word ''detail," as used in the act of November 
3, 1893, must be regarded as having been used in the sense ordinarily 
attributed to it in the military service. The frequency of detail 
and the interval of time wliich shall elapse between successive 
details are incidents which, if not provided by statute, are to be 
determined by the Secretary of War m regulation or orders prepared 
for that purpose. The limiting words of the statute were mtended 
to describe the length of a detail, rather than to preclude a reassign- 
ment of the officer to the same or similar duty at the expiration 
of a four years' detail. 

If it be desired to assign a retired officer to a second detail, it 
will be necessary, as the period of detail is rigorously restricted by 
statute, that the officer should be formally reheved from college 
duty and subsequently redetailed in appropriate orders from The 
Adjutant General's office. 0. 13791, Dec. 12, 1902. 

II B 1 f. Held, that under the act of February 26, 1901 (31 Stat. 
810), a retired Army officer may, with his consent, be detailed to 
duty with a high school. C. 24-566, Feb. 26, 1909. 

II B 1 g. HeM, that under section 1225 R. S. an officer of the Army 
can be detailed as an instructor to a college in Porto Rico and that 
such detail is in line with the military policy of the United States 
in the dissemination of military instruction. G. 27865, Feb. 15, 1911. 

II B 2 a. It has been the general practice of the War Department 
under section 1225, R. S., as amended by the act of September 26, 
1888 (25 Stat. 491), to refuse applications for arms, etc., except when 
made by some "established military institute, seminary or academy, 
coUege or university," to which an army (or naval) officer had been 
regularly detailed ; and this practice is believed to be in accordance 
with a fair and reasonable interpretation of the statute referred to.^ 
C. 3271, June, 1897; R. 37, 201, Dec. 1875; P. 41, S08, June, 1890; 
C. 21782, July 15, 1907. 

II B 2 b. Held, that the Secretary of War is authorized to issue arms 
to any college, etc., where either an Army or a Navy officer has been 
detailed under the provisions of section 1225, R. S., as amended by 
the act of September 26, 1888 (25 Stat. 491).^ P. 38, 201, Jan., 1890. 
Held, further that requisitions for such supply of arms and ordnance 
stores require the approval of the governor of the State or Territory 
in which the college is located. G. 18007, Jan. 21, 1910. 

II B 2 c. The official of the college, etc., to whom the ordnance 
stores issued under this section are intrusted, may properly be 
required to render the returns indicated in section 1167, R. S., wliich 
directs that all "officers, agents or persons" receiving or intrusted 
with ordnance stores or supplies shall make certain regular returns 

» See VI Comp. Dec, 120. 

2 In 1885 arms were issued to the Washington High School by the Secretary of War; 
but subsequently under date of Nov. 25, 1890, the then Secretary held, upon an 
application from the same school for 100 cadet rifles, that there was no authority of 
law for the issue, and declined to follow the precedent of 1885. At the same time 
he recommended Congressional action in the matter and Congress by joint resolution 
approved Feb. 5, 1891, authorized the issue. 

Mf 100 Army officers should be detailed to duty with colleges, under the act of 
Nov. 3, 1893 (28 Stat. 7), but 10 naval officers could be detailed, since under the 
provisions of that act the total number of Army and Navy officers is limited to 110, 
and the number of Army officers which can be detailed is also limited to 100. 



MILITARY INSTRUCTION — MILITARY RESERVATIONS. 697 

of the same according to forms and rules prescribed by the Chief of 
Ordnance with the approval of the Secretary of War. R. 4^, 282, 
May, 1879. 

II B 2 d. Where it was found that arms issued by the Government 
to an institution were, through carelessness, damaged in a stated 
amount, held, that, in default of payment, if it be desired to sue 
for the damages the bond and sureties may be ignored and suit 
brought directly against the owners of the institution (academy) 
alone, or suit may be brought on the bond; or if it be decided to 
demand, under the regulations of the War Department relating to 
the issue of arms to colleges, etc., the return of the arms, and the 
same were not returned in 30 days, the bond could be put in suit 
and the claim for damages included therewith. G. 2902, Feb., 1897; 
17891, Apr. 22, 1905; 22056, Nov. 25, 1910. 

II B 2 6 (1). Held, that when it becomes necessary to demand the 
return of ordnance and ordnance stores which have been issued to 
institutions of learning under the acts of September 26, 1888 (25 
Stat. 491), and the act of April 21, 1904 (33 Stat. 226), the demand 
is legal if signed by the Chief of Ordnance by authority of the Secre- 
tary of War. a 19878, June 11, 1906. 

CROSS REFERENCE. 

See Militia VI to VII. 

By retired soldier See Retirement II E 2 b. 

Civilians by retired officers See Retirement I K 3 to 4. 

MILITARY NECESSITY. 

See Claims VII B to C. 
Destruction of property See War I C 6 h. 

MILITARY OCCUPATION. 

Cuba See War I C 8 c to d. 

Philippine Islands See Articles of War LVIII D. 

MILITARY PRISON. 

See Discipline XVII A 4 g to h. 

Appropriations for See Appropriations XXXVI A ; B. 

Articles manufactured by See Laws II A 1 c. 

Discipline XVII A 4 g (I) to (6). 

Labor at See Eight-hour law VII. 

Prisoners See Articles ofWar CXII A Ic (1); B; C. 

MILITARY RESERVATIONS. 

See Public property I A 1; III to IV. 

Cutting grass See Command V A 3 g. 

Cutting wood See Public property II F to G. 

Grazing See Public property VIII E. 

Hotel on See Public property I A 1. 

Intoxicants See Intoxicants II to III 

Jurisdiction See Army I E 5. 

Offenses on See Articles op War LXII C 5 a. 

Residence of retired soldier See Retirement II B 4 b . 

Road school tax, civilian employees See Tax II to III. 

Sale of timber See Public property IX A 2 a (3). 

School tax See Tax IV B. 

Ship wrecks See Claims VI E. 

Shore Line See Command V A 3 f. 

Squatters See Public property II B 3 a; III H to I. 

State camp See Militia VI B 1 c. 

Taxations of private property See Tax III to IV. 

Territorial statutes See Territories I to II. 



698 MILITARY SERVICE — MILITIA: SYNOPSIS. 

MILITARY SERVICE. 

Making good time lost See Articles op War XLVIII E. 

MILITIA. 

I. CALLING FORTH. 

A. What Constitutes a Calling Forth? Page 702 

1. May not be called forth for drill or in anticipation of war. 

B. The Secretary op War May Issue the Orders. 

C. Manner op Calling Forth. 

D. When Called Forth, Members Can Not Decline. 

E. Called Outside of LTnited States Page 703 

F. President Sole Judge op Necessity to Call Forth. 
n. MILITIA NOT FEDERAL TROOPS. 

A. When en route to Joint Encampment Over Land-grant Railroad. 

1. When en route to joint encampment by march. 

B. During Joint Encampment with Regular Army Page 704 

C. Medical Oppicers op Militia Can Not Make Examination op School 

Teachers for Service in the Philippines. 

D. Members op Militia Can Not be Prosecuted under Sections 3748 

AND 5438, Revised Statutes, for Sale op Arms. 
m. ORGANIZATION. 

A. Must be the Same as That op the Regular or Volunteer Army. 

B. Op Infantry, Cavalry, and Field Artillery Page 705 

C. Op Machine Gun Platoon Page 706 

D. Op Coast Artillery. 

E. Discrimination Because of Color. 

F. Office is not Civil Office. 

G. Adjutant General. 

H. Quartermaster General. 

I. Governor's Aids. 

J. Authorized Privileges Page 707 

K. Retired Regular Soldier Accepts Commission in Militia. 
L. Company of Students at a College. 
IV. UNAUTHORIZED FORCES. 

A. State Can Not Create Force which Shall be Exempt-prom Being 

Called Forth. 

B. Voluntary Organizations. 

C. Insular Police, Porto Rico, and Alaskan Indians Page 708 

D. Indian Militia in Indian Territory. 

E. National Guard Veterans of Oregon. 

F. Honorary Quartermaster General. 

G. Decrepit Officers. 
V. ENLISTMENT. 

A. Qualifications for, in Militia Page 709 

B. Enlistment of Member op Militia in Regular Army. 
VI. INSTRUCTION. 

A. Theoretical Instruction. 

1. At Regular Army schools Page 710 

2. By details from Regular Army. 

a. By Regular officer — active list Page 711 

b. By Regular officer — retired Page 712 

c. By enlisted man — Regular Army Page 713 

d. Philippine Scout officer not eligible for detail. 



militia: synopsis. 699 

VI. INSTRUCTION— Continued. 

B. Field Instruction. 

1. State camps of instruction. 

a. Governor selects portion for participation. 

b. Governor selects place of instruction Page 714 

c. Instruction may be given with permission on a military 

reservation. 

d. Subsistence stores may be sold to officers. 

e. Disbursing officer. 

(1) Not entitled to commutation of quarters in camp. 

(2) Purchase of rations. 

(3) Hiring of wagon transportation for practice march. 

(4) Medical attendance for man en route to camp. 

(5) Expense of sending sick man to his home. 

(6) Payment for damage to crops Page 715 

(7) Reimburse officers who had purchased transportation 

to camp. 

(8) Reimburse officer whose horse had been foundered 

in camp. 

(9) No fund for entertainment of attaches. 
/-. Joint camps of instruction with Regular Army. 

a. Lease of land for. 

b. Relative rank of Regular and Militia officers Page 716 

c. What constitutes "participation." 

d. Payments made by Regular officers. 

e. Transportation — how secured. 

f. Automobile transportation not allowed in certain cases. 

g. Sales, subsistence stores to officers and enlisted men. 

h. Allowances limited to "pay, subsistence, and transpor- 
tation." 

1. Fuel for cooking, and hay for bedding Page 717 

j. Baking bread, 
k. Bakery profits. 

1. Unauthorized bills for transportation, labor, material, board, 
lodging, transfers, and hospital expenses. 

m. Damage to property Page 718 

n. U. S. not responsible for torts of officers Page 719 

C. Target Practice. 

1. Acquisition of ranges, etc. 

a. By setting aside public land. 

b. By purchase. 

c. By lease. 

(1) Ground for ranges and buildings for galleries, leased 

and expense of adaptation met Page 720 

(2) Execution of lease. 

(3) Lease for several years Page 721 

(4) Insufficient description in lease with actual occu- 

pation. 

d. Expenses of officer in selecting range. 

e. Insiu"ance of buildings on range. 

f. Issue of forage to mules used on a range Page 722 

g. Range may be equipped with water plant. 
h. United States will not protect use of range. 

i. Method of selecting members of property damage boards. 



700 militia: synopsis. 

VI. INSTRUCTION— Continued. 

C. Target Practice — Continued. 

1. Acquisition of ranses, etc. — Continued. 

j. Damage to property leased for use as a range. 

k. A target range may be rented for use as a pasture. 

2. Field practice. 

a. Promotion of under Act of June 22, 1906 Page 72S 

b. A State competition is a camp of instruction. 

c. The National Match. 

D. Inspection. 

1. Year preceding allotment is "calendar" year Page 724 

vn. TRANSPORTATION. 

A. Freight, Storage, and Drayage of Equipment for Target Range. 

B. Transportation of New Material to Militia and Return of Old 

TO United States. 

C. FftEiGHT FROM State Arsenal TO Stations OP Companies Page 725 

D. Transportation of Target Teams to National Match. 

E. When Traveling under War Department Orders Entitled to 

50 Per Cent Land-grant Reduction the Same as Regular Troops. 

F. Op Armament Foreman op a District Page 726 

Vm. ARMORY. 

A. State's Duty to Provide Armory Facilities. 

B. May Not be Used for Drill Purposes by Aliens. 
IX. UNITED STATES PROPERTY. 

A. Issues. 

1. Books, clothing, fire-control equipment, etc. 

2. Act of May 27, 1908. (35 Stat., 399.) 

a. Armament Page 727 

B. Sales to a State. 

1. Request must be by governor — special cases. 

C. Loan op Property to Militia not Authorized Page 728 

D. Governor's Accountability. 

E. Repair op Property Page 729 

F. Recovery op Property From Men. 

G. Disposition of Condemned Clothing. 
H. Surveying Officer. 

I. Surveying Officer Requires Affidavits Page 730 

J. United States Property Carried into Volunteer Service. 
X. UNITED STATES FUNDS. 

A. How Disbursed. 

1. Sec. 1667 Revised Statutes, remain available until expended. 

2. Turned over to State on request of governor, and disbursed under 

his direction, etc. 

B. Inspection op Disbursing Officer's Account Page 731 

C. Clerk for Disbursing Officer not Allowed. 

D. Hawaii Held to be a Territory for Purpose of Allotment. 

E. Veterinary Attention and Care op Horses. 

F. Caretaker for United States Property can not be Paid From. 
XI. PAY. 

A. The Adjutant General of a State. 

B. Heads of Staff Department, at State Camps Page 732 

C. Officers Authorized for Pay at Joint Encampment With Regular 

Army. 

D. Pay op Disbursing Officer. 

E. Pay of Assistant Surgeon. 



militia: synopsis. 701 

XI. PAY— Continued. 

F. Extra Pay for Keeping Horse. 

G. Longevity Pay Page 733 

H. Officer on Special Duty Preparing Camp Ground for Troops. 
I. Pay of Members of Damaged Property Board. 

K. Officer on Leave. 

L. Retired Officers. 

M. Decrepit Officers. 

N. Pitmen, Markers, etc., of Target Ranges Page 734 

0. En Route to Rendezvous, Preceding Joint Maneuvers. 
P. Members of Rifle Team. 

Q. Claim for Pay of Deceased Soldier. 
Xn. SMALL ARMS, AMMUNITION, AND EQUIPMENT. 

A. Exchange of New for Old Page 735 

B . Issue of Ammunition Page 736 

Xm. UNIFORM. 

A. Federal Control Over. 

B . Campaign Badge Page 737 

Xrv. CORRESPONDENCE. 

A. Penalty Envelopes. 

B. Telegrams Page 738 

C. Of Disbursing Officer with War Department. 
XV. CANTEEN. 

A. At State Maneuver Camp Ground. 
XVI. NATIONAL GUARD OF DISTRICT OF COLUMBIA. 

A. Definition of Page 739 

B. DiSBANDMENT OF. 

C. Retiring Board. 

D. Retirement. 

E. Service in, of Government Employees .- Page 740 

F. Uniform Page 741 

G. Property Responsibility. 

H. Evidential Value of Certificates of Officers. 

1. Supplies. 

1. Act of March 1, 1889. (25 Stat., 772) Page 74£ 

2. Shares in $2,000,000, clause of act of March 2, 1903. (82 Stat., 942.) 

3. Typewriting machines. 
, 4. Furniture. 

.X> 5. Loan of property to National Guard of District of (I'olumbia by 

Secretary of War, not authorized Page 743 

6. Loan of 2-mule team with wagon requested by District National 
Guard. 
J. Discharge of Enlisted Men. 
XVn. VOLUNTEERS. 

A. Examinations to Determine Class of Men Eligible for Volun- 
teer Commission. 
XVm. NAVAL MILITIA. 

A. Naval Militia of the States , . Page 744 

B. Naval Militia of the District op Columbia. 
XIX. NATURALIZATION OF ALIEN. 

A. Service in Militia Does Not Count Toward Page 745 

XX. HISTORY OF REGIMENTS. 

A. Act op March 2, 1895. 
XXI. OPINIONS NOT RENDERED BY JUDGE ADVOCATE GENERAL ON 
MILITIA QUESTIONS THAT RELATE ONLY TO THE STATE. 



702 MILITIA I A. 

I A. The President has no original authority over the militia by- 
right of his office. He can only call them out when Congress provides 
for his doing so as the agent of the United States for such purpose. 
When the call is complied with he becomes their commander in 
chief. ^ P. 51, 120, Bee, 1891. No efnployment of the militia, save 
in the cases presented in the above sections of the Revised Statutes 
and in the act of January 21, 1903 (32 Stat. 775), as amended by the 
act of May 27, 1908 (35 Stat. 399), constitutes a calling forth within 
the meamng of the Constitution. P. 60, J^75, July, 1893; C. 186, 
Aug., 1894; ^32, Mar., 1895. 

I A 1. The power of the President to call forth the Organized 
Militia is restricted to the objects mentioned in section 8, article 1, 
of the Constitution, "to execute the laws of the Union, suppress 
insurrection, and repel invasion." There is no power to call forth 
the militia, much less employ it, in ''anticipation of war." Held, 
therefore, that the President is without power to call forth the 
Organized Militia for the purpose of garrisoning military posts made 
vacant by the sending of the troops of the Regular Army, for any 
purpose, beyond the continental limits of the United States; and 
that it can only be so employed when the conditions exist which would 
warrant him in calling forth the militia. C. 16273, June, 190^. 

I B. The calling forth of the militia into the United States service 
is an administrative function, a ministerial act, in which the Secretary 
of War may issue the necessary orders as the organ of the Executive; 
and his act is the act of the President. P. 61 , 55, Aug., 1893; C. 2806, 
Dec. 18, 1896. 

I C. The manner of the caUing out of the miUtia by the President 
under the act of 1795 (sec. 1642, R. S.), is indicated by the Supreme 
Court in the leading case of Houston v. Moore,^ where it is observed 
that, ''the President's orders may be given to the chief executive 
magistrate of the State, or to any militia officer he may think proper." 
The call would ordinarily be addressed to the governor, who, in most 
of the States, is made commander in chief of the active militia of the 
State. A further form indeed of calling out the mihtia, viz, by a con- 
scription, was authorized during the civil war by the act of July 17, 
1862. P. 51, 325, Jan., 1892; C. 22878, Nov. 27, 1908. The act of 
May 27, 1908 (35 Stat. 400), provides that it shall be lawful for the 
President to issue orders for calhng out the militia through the 
governor of the respective State or Territory, or through the com- 
manding general or the militia of the District of Columbia, from 
which State, Territory, or District such troops may be called, to such 
officers of the militia as he may think proper. Held, that should the 
governor refuse to act as the channel of communication from the 
President to the mihtia, that he could not be compelled to act, but 
that in such a contingency the President may address his orders 
direct to the proper organization commanders of the militia forces. 
a 4003, Nov. 3, 1910. 

1 D. Section 4 of the act of January 21, 1903 (32 Stat. 776), 
authorizes the President in certain contingencies to call forth the 
mihtia. Held, that the members of an organization that has been 

' See the act of Jan. 21, 1903 (32 Stat. 775), as amended by the act of May 27, 1908 
(35 Stat. 400), and sees. 5297, 5298, and 5299, R. S. 

2 5Wheaton, 15(1820). 



MILITIA I E. 703 

SO called forth would be compelled to enter the service of the United 
States. C. 14148, Mar., 1906, and Mar., 1908. Held that "calUng 
forth" mihtia into the service of the United States removes it from the 
status of mihtia as that term is used in section 1661, R. S., as 
amended. C. 5455, Dec. 19, 1898. 

IE. Under sections 1642 and 5298, R. S., the President has the 
power to call the militia from one State into anotlier to execute the 
laws of the Union, suppress insurrection, and repel invasion, C. 7574, 
June, 1900. But he can not constitutionally order militia "called 
into the service of the United States" for the purpose of invading a 
foreign country.^ C. 3937, 4073, Mar. and Apr., 1898. Held, that 
as the laws of the Union are operative in Porto Rico and in the 
Philippine islands, that the militia of the United States may be used 
in those islands for any of the purposes for which it may be used as 
defined in section 8, article 1, of the Constitution. C. 16273, May 
3, 1904. 

Held, that the President is not authorized to call out the National 
Guard and send it into a foreign country as a part of an army of 
occupation, either in case of war or in case of intervention, unless 
as an incident of its use in repelling invasion or in executing laws 
which may be extended over such territory, and such use would be 
unauthorized and contrarj^ to the Constitution.^ C. I4I48, Dec. 29, 
1911. 

1 F. Held, that the President is the sole judge of the necessity for 
calling forth the militia: and that his judgment is conclusive upon 
aU others.3 C. I4148, Dec. 29, 1911. 

II A. Under the Constitution, Congress is given power " to provide 
for calling forth the militia to execute the laws of the Union, suppress 
insurrection and repel invasion." No authority is given to call the 
militia into the service of the United States for any other pui-pose. 
Upon the question, therefore, as to whether the United States was 
entitled, under section 5 of the act of July 25, 1866 (14 Stat. 241), to 
have the Oregon militia, as "troops of the United States," trans- 
ported free of charge over the Southern Pacific Railroad, a land- 
grant road, while en route to the place of encampment, to participate in 
joint maneuvers with the Army, it was held, that as the militia in ques- 
tion were not "called forth" in the manner or for any of the purposes 
prescribed in the Constitution, they could not be regarded as "troops 
of the United States" within the meaning of said act; and that the 
railroad company could not be required, therefore, to transport them 
at its own expense under its contract with the United States.* 
C. 20204, ^ug., 1906; 14971, Feh. and July, 1904; 16925, Sept., 1904. 

* Ordronaux Constitutional Legislation 501; Kneedler v. Lane, 45 Penn., 238; Mar- 
tin V. Mott, 12 Wheat., 19; Houston v. Moore, 15 id., 1. See sec. 4 of the act of May 
27, 1908, (35 Stat. 400), which recognizes service of the militia outside of the territorial 
limits of the United States. Such service could arise in connection with repelling 
invasion, as is indicated in Martin v. Mott (12 Wheat., 19, 29). 

2 Art. I, sec. 8, U. S. Constitution. See 29 Oj). Atty. Gen.— Feb. 17, 1912, in which 
he held that the President can not call the militia forth for the purpose of sending 
it into a foreign country as a part of an army of occupation. 

3 See Martin v. Mott (12 Wheat., 19, 29) Luther v. Brown (7 New, 1), also Story on 
the Constitution, sec. 1211. 

* See XVI Comp. Dec. 70, in which it is held that the militia so traveling are 
included in the term " troops" as used in the act of July 25, 1866. (14 Stat. 241). 
See XIV Comp. Dec. 912, where no deduction is allowed in the case of a target team. 
But see Militia VII E post in which it is held that militia en route to joint encamp- 
ment are entitled to land-grant deductions. 



704 MILITIA II B. 

II B. A joint encampment of the militia and a part of the Regular 
Army was about to be held in the Department of the East. The 
question was raised whether or not the militia there in camp would 
be in the service of the United States, so that they would be subject 
to the articles of war for the Army, as provided in section 9 of the act 
of January 21, 1903. Held, that section 15 of the act of January 
21, 1903, confers no authority upon the President or the Secretary of 
War to issue orders to the organized militia in time of peace, or at 
any time, or under any condition save in the cases enumerated in the 
Constitution and expressly provided for in sections 4, 5, and 6 of the 
act of January 21, 1903. C. 14971, July 28, 1904; I4I48-A, Aug. 29, 
1904. 

As the militia forces while participating in the recent maneuvers 
at West Point, Ky., were not " called forth" in the manner or for any 
of the purposes prescribed in the Constitution, held, that they con- 
tinued to be State forces and did not at any time pass into the service 
of the United States and similarly held, that if any member of a mili- 
tary organization received injuries during the period of his partici- 
pation in any joint encampment necessitating medical attendance the 
claimant for compensation for such service should apply to the State 
government for relief, and not to the War Department, as the injuries 
were incurred in the service not of the United States but of the State. 
C. 16925, Sept. 22, 1904; HU8, Feb. 11, 1904, Aug. 9, 1905, Oct. 3, 12, 
and 14, 1907; 20402, Aug. 3 and Sept. 26, 1906. The horse of a 
trooper of the First Cavalry, New Jersey National Guard, died 
during the march to Mount Gretna, Pa., to participate in joint 
maneuvers with the Regular Army. Held, that tlie War Department 
is not responsible for the loss of the horse and the United States 
can not under existing law reimburse for the loss of that horse. 
Held, also, that the allotment of the State of New Jersey, under 
section 1661, R. S., may not be used for that purpose. C. 20402, 
Sept. 26, 1906. 

II C. As officers of the Organized Militia are not Federal officers, 
held, that a medical officer of the National Guard can not lawfully 
make the examination of school teachers, which must be made under 
the requirements of the Philippine civil service regulation by a med- 
ical officer who holds office under the United States. 0. I4148-E, 
Mar. 11, 1908. 

II D. Sections 3748 and 5438, R. S., describe the offenses of selHng 
arms, equipments, ammunition, etc., by any person employed in the 
military service of the United States, and of purchasing the same from 
such person, and provides the punishment for the commission of such 
offenses. Held, that members of the Organized Militia are not in the 
service of the United States in the sense contemplated in these sec- 
tions. C. 14148-E, Mar. 23, 1908. 

III A. Section 3 of the act of January 21, 1903 (32 Stat. 775), pro- 
vides that within five years from Januar}'- 21, 1903, the organization^ 
of the Organized Militia shall be the same as that which is now or may 
hereafter be prescribed for the Regular and Volunteer Armies of the 
United States. Held, that until the five years shall have expired, if a 
State has not altered the organization of its Organized Mlitia to con- 

'See Acker v. Bell (57 S. R. 357) in which it is held that the word "organization" 
as used above does not relate to or include the enlistment of a eoldisr, but relates tQ 
the distribution of the personnel of the Army or militia into units. 



MILITIA III B. 705 

form to that prescribed for the Regular or Voiunteer Army of the 
United States, the autiiorized Organized MiUtia of the State is that 
force which was in existence January 21, 1903, which force can par- 
ticipate in the apportionment of funds appropriated by section 1661, 
R. S., as amended by the act of February 12, 1887 (24 Stat. 401), and 
the act of June 6, 1900 (31 Stat. 662). C. I4148, July 2, 1903. Held 
that any change in the organization of the mihtia of a State within 
five years after January 21, 1903, must be to make the organization 
conform to tliat of the Regular or Volunteer Army, or else the extra 
officers so created can not be recognized by the War Department in 
making payments under section 15 of the act of January 21, 1903, or 
in passing accounts for payment made by a disbursing officer of a 
State or Territory or the District of Columbia under the authority to 
that end wliich is conferred by section 14 of the act of January 21, 
1903. C. UV+8, July 7, 1903. Held, that in order that a State may 
quahfy for sharing in the annual apportionment of the appropriation 
provided in section 1661, R. S., as amended, it must provide an 
organization for its Organized Mihtia which is the same as that pro- 
vided by statutes for the Regular or Volunteer Armies of the Umted 
States. C. 14U8-C, May 31, July 8, arid July 29, 1907} Held that 
section 3 of the above act does not require the States to copy the 
retirement feature of the Regular Army. C. 14148~D, Oct. 24, 1907. 
Ill B. Under existing laws on organization of the Army the 
Infantry is organized into companies and battahons of four com- 
panies each and regiments of three battalions each. The Cavalry 
IS organized into troops and squadrons of four troops each and regi- 
ments of three squadrons each, and the Field Artillery is organized 
into batteries and battalions of three batteries each and into regi- 
ments of two battalions each. Held, that under existing law, if the 
Organized MUtia of a State includes Infantry it must be organized 
into companies. If it includes four companies, they must be organ- 
ized into a battahon. If it includes three battalions, they must be 
organized into a regiment. If the Organized Mihtia includes Cavalry, 
it must be organized into troops. If it includes four troops, they 
must be organized into a squadron. If it includes three squadrons, 
they must be organized into a regiment. If the Organized Militia 
includes Field Artillery, it must be organized into batteries. If it 
includes three batteries, they must be organized into a battalion. If 
it includes two battalions, they must be organized into a regiment.^ 
C. 14148-B, May 14, 1906; I4148-D, Sept. 16 and 25, 1907. Also 
lield, that as long as that portion of the Organized Militia of a State, 
which consists of Infantry, Cavalry, and Field Artillery, conforms to 
the organization prescribed in section 3 of the act of January 21, 
1903, it will be entitled to receive the annual allotments in the 
operation of section 1661, R. S., as amended. Held, further, that 
the establishment of higher commands than regiments is committed 
to the discretion of the several States. C. I414S-F, June 29, 1909. 

^ See act of June 22, 1906 (34 Stat. 449), which requires each State to have at least 
100 men regularly enlisted, uniformed, and organized for each Senator and Repre- 
sentative to which such State is entitled in the Congress of the United States. 

2 Sec. 3 of the act of Jan. 21, 1903 (32 Stat. 775), as amended by the act of May 27, 
1908 (35 Stat. 399), provides that this requirement that the organization of the militia 
shall conform to that of the Regular Army is "subject in time of peace to such general 
exceptions as may be authorized by the Secretary of War." 

93673°— 17 45 



706 MILITIA III C. 

inc. As the " machine-gun platoon " is not an essential element 
either of the organization of a battalion or regiment in the Regular 
Army, Tield, that if a State has made no provision for a machine-gun 
platoon it is not required to create one m order to comply with the 
requirement contained in section 3 of the act of January 21, 1903, 
that the organization of the militia shall, within five years, be the 
same as that of the Regular or Volunteer Armies of the United States. 
Further held, that if a State has made provision for a machine-gun 
platoon, section 3 of the act of January 21, 1903, requires that its 
organization must be made to conform to that of a machine-gun 
platoon in the Regular Army as fixed in War Department orders or 
regulations.^ O. I4148-O, June 28, 1907. 

Ill D. The acts of January 25, 1907 (34 Stat. 861), and May 11, 
1908 (35 Stat. 124), prescribe the ratings of enlisted men in the Coast 
Artillery Corps of the Regular Army, Held, that these ratings are 
fully applicable to the Coast Artillery troops of the Organized MUitia 
in the operation of sections 14 and 15 of the act of January 21, 1903, 
as amended. G. IpjS-H, July 1, 1910. 

Ill E. If a State discriminates in the composition of its Organized 
MUitia against a class because of color, held, that the act of January 
21, 1903 (32 Stat. 775), deprives the Federal Government of the 
power to devise or to apply an adequate remedy. 0. 1414^-B, Mar. 
10, 1906. 

Ill F. Held, that as office in the militia is not civil office, an officer 
of the Regular Army is not prevented by the restriction in section 
1222, R. S., from accepting a commission in the mUitia.^ O. 29273, 
Dec. 2, 1911. 

Ill G. As the United States provides itself with sufficient adju- 
tants general to execute that class of 'staff duty, held, that section 3 
of the act of January 21, 1903, permits a State to provide itself 
with sufficient adjutants general to execute that class of staff duty 
for its Organized Mifitia. 0. I4I48-D, Oct. 8, 1907. 

Ill H. Paragraph 1, Circular 11, Department of the Gulf, June 2, 
1908, required the quartermasters general of the Organized Militia 
of the different States which were to participate in the joint encamp- 
ment at Chickamauga Park, Ga., to issue the bills of lading. Held, 
that the quartermaster general of a State may lawfully be desig- 
nated as a quartermaster's agent in connection with the joint encamp- 
ments of the Regular Army and Organized Militia, to assist the Quar- 
termaster's Department in the performance of the duties with which 
that department is charged in the current act of appropriation. G. 
14148-F, May, 1909; 27148, Aug., 1910. Held, that it has been cus- 
tomary to designate quartermasters general of State militia as quar- 
termaster agents for the purpose of transporting the militia. G. 
27148, Aug., 1910. Held, tnat in his capacity as agent of the Quar- 
termaster's Department he may use penalty envelopes in his official 
correspondence. G. I4I48-F, July, 1908. 

Ill I. Upon request by the governor of a State for information as 
to whether or not, in the selection of his aids he is restricted by sec- 
tion 3 of the act of Januaiy 21, 1903, to officers already commissioned 
in the Organized Militia of the State, held that he is not so restricted. 
G. 14148-F, Aug. 5, 1908. 

' See footnote to previous paragraph. 

2 Concurred in by the Attorney General Jan. 31, 1912. 29 Op., 298. 



MILITIA III J. 707 

III J. In view, of the exact language used in the proviso of section 
3 of the act of January 21, 1903, held, that only those privileges can 
be authorized to the National Guard which had become accustomed 
before May 8, 1792, and which have been enjoyed continuously since 
that date. C. HH8, Oct. 8, 1907, and July 11, 1911. 

Ill K. There is no law or regulation of the United States which 
would prevent a retired enhsted man from organizing and drilling 
a militia company or would prevent him from accepting an office 
or employment under a State. C. 3638, Nov. 8, 1897, and Jan. 9, 
1909. 

III L. If the enhsted men of a company of students at a college 
are over the age of 18, and if there are enough students over that 
age to furnish a constant membership in the school organization 
equal to the minimum prescribed by law, held, that the mere fact 
that they are matriculated students of an institution of learning 
would not operate to defeat their contracts of enlistment or to 
deprive the State of the right to regard them as a part of its Organ- 
ized MUitia in all matters relating to the expenditure of funds arising 
in the operation of section 1661, R. S,, as amended, or other acts of 
legislation in 'pari materia. C. 1414^-0, Apr. 11, 1910. 

IV A. In view of the restriction contained in section 10, article 1, 
of the Constitution of the United States, which provides that "No 
State shall, without the consent of Congress, keep troops, or ships 
of war in tiine of peace * * *, or engage in war unless actually 
invaded, or in such imminent danger as will not admit of delay, 
held, that on January 21, 1903, the date of approval of the general 
mihtia law, there were in existence in the several States and Terri- 
tories, for which there was no authority, military organizations 
which did not conform to the organization prescribed in the act of 
May 8, 1792 (1 Stat. 271), and miich force was in fact maintained 
by the States in disregard of the requirement of the Constitution 
above cited. C. 14^4^, July 2, 1903. Also held, that because of the 
restriction contained in the above section of the Constitution of the 
United States, it is beyond the power of a State, without the con- 
sent of Congress, to create a military force which shall form a part 
of its militia and shaU at the same time be exempt from being called 
forth by the President. C. I4148, Sept. 5, 1903, and Aug. 10, 1908. 

IV B. Held, that a company of cadets composed of boys under 18 
years of age can not be considered militia, and even if organized and 
uniformed can not be entitled to receive the benefits provided for in 
section 14 of the act of January 21, 1903 (32 Stat. 775), as that act 
hmits the militia to able-bodied men between the ages of 18 and 45. 
0. 14148-A, Dec. 2, 1905. Held that the "Fremont Signal Corps," 
a purely voluntary organization which forms no part of the National 
Guard of Cahforma, is not entitled to receive stores of any kind from 
the United States under the ;ict of January 21, 1903. C. 14'^ 40, 
May 29, 1903. Held, that there is no authority of law by which 
any part of the Federal appropriation for the militia may be em- 
ployed to cover the expenses of sending Company A, Veteran Re- 
serves of CaUfornia, which is not a part of the Organized Militia 
of the State, to the St. Louis Exposition. C. 16039, Mar., 1904. 
Held, that a cadet corps was not contemplated by the general militia 
act of January 21, 1903 (32 Stat. 775), and that such an organiza- 
tion at the West Virginia University does not constitute a part of 



708 MILITIA IV C. 

the Organized Militia of the State of West Virginiji. C. 14i4^-D, 
Dec. 17, 1907. 

IV C. jffeZt?, that the insular pohce of Porto Rico, which has not the 
legal status of militia, is not entitled to share in the appropriation 
made by the General Government for the support of the militia. 
C. U604, May 7, 1903, arid Jan. 3, 1906. Held, that the Alaska 
Indians do not come within the rules of eligibiUty for membership 
in the militia as prescribed in the act of January 21, 1903 (32 Stat. 
775). O. I4O86, Jan. 31, 1903. As the estabUshment of a force of 
Organized MiUtia in a Territory is a legislative act lying quite beyond 
the power of the governor, whose acts in that regard must be in 
execution of the will of the legislature, and as Congress has provided 
no legislative department for the Territory of Alaska, Jield, that 
before the governor of Alaska can act in the matter of organizing 
mUitia it will be necessary that Congress take the necessary steps 
looking to the estabUshment of a Territorial militia. C. lJf.125, Dec. 
14, 1907. 

IV D. The Indian Territory has no governor or other territorial 
authority competent to orgamze a force of militia. No militia force, 
therefore, has ever been organized in that Territory, and no appor- 
tionment has been made to that Territory of funds accruing in the 
operation of section 1661, R. S., as amended. Held, that there is 
no authority for organizing a company of militia of Indians in the 
Indian Territory. C. 3076, May, 1897. Also lield, that the organi- 
zation of "boys" in the Indian Territory as home guards is 
unlawful and can not be authorized by the War Department. 
C. 11099', Aug. 22 and Nov. 20, 1901. The Congress, in sections 
467, 2132, and 2134-2137, R. S., has expressly forbidden the sale 
of arms or ammunition in the Indian Territory. Request was made 
for 60 or more of the latest pattern United States rifles, with neces- 
sary ammunition and aecouterments, for the purpose of arming and 
equipping a miUtary company which it is proposed to organize in 
the Indian Territory. Held, that there is no authority of law for such 
issue of arms or munitions of war. C. 11099, Mar. 23, 1907. 

IV E. Officers and enlisted men in the National Guard of the 
State of Oregon may, after seven years' service, or because of disa- 
bility for active service, be transferred to a list known as the " National 
Guard Veterans," and shall retain their rank and be entitled to wear 
the uniform. Held, that such officers and enlisted men are not a part 
of the Organized Militia of that State. C. I4I48-E, May 29, 1908. 

IV F. As one who holds an "honorary" commission as quarter- 
master general of a State is not a part of the Organized Militia of the 
State, held, that he is not eligible for appointment as disbursing officer 
of the State. C. I4I48-E, May 12, 1908. 

IV G. It is within the authority of Congress to impose reasonable 
limits of age upon commissioned officers as a condition precedent to 
the assistance in the way of money and war material which it affords 
to the Organized Militia of the several States. Held, that this would 
not be an invasion of the appointing power in respect to the officers of 
the Organized Militia which is expressly reserved to States by the Con- 
stitution of the United States. C. I4148-G, Feb. 12, 1910. 

Held, that as the Government may condition its allotment to the 
militia upon the conformation of the National Guard to the physical 
standards of the Regular Army, it can deny pay to a mifitia officer 



MILITIA V A. 709 

upon the ground that he is not physically fit. C. 1j^911, Mar. 7, 
1911. 

V A. The qualifications for enlistment in the militia depend on the 
laws of the States.* Held, that the prohibition contained in section 2 
of the act of August 1, 1894 (28 Stat. 216), providing that no soldier 
whose service during his last preceding term of enlistment has not 
been honest and faithful shall be again enlisted in the Army, does not 
preclude enlistment in the militia of a State. C. 18021, May 19, 1905. 
As there is no enactment of Congress which restricts service in the 
militia of a particular State to citizens of that State, Tield, that 
noncitizenship in such a State would not, under section 4 of the act 
of January 21, 1903 (32 Stat. 775), operate to defeat a contract of 
enlistment entered into b}'' a nonresident who is a student of a college 
within that State if the organization to which the student belonged 
should be called into the service of the United States. C. IJi-l/fS-G, 
Apr. 11, 1910. Held, that the status of a retired soldier of the United 
States Anny would not be affected by accepting the position of ser- 
geant major in a regiment of the Organized MUitia of a State. C. 
14911, Jan. 29 and July 11, 1910. Held, that there is no legal objec- 
tion to the enlistment in the National Guard of a retired officer of the 
Regular Army, but the expediency of making such an enlistment 
is not apparent. C. I4148-G, Oct. 25, 1909. 

V B. Upon request for an opinion as to whether or not a recruiting 
ofiicer of the Regular Army has the right to enlist men of the National 
Guard, before they are discharged from the guard, held, that the enlist- 
ment of a member of the National Guard in the Regular Army does 
not operate as a discharge from the National Guard; and that by so 
enlisting he becomes and remains liable to such penalties as may be 
authorized by the law of the State, Territory, or district in whose 
militia he has been enlisted.^ C. 5753, Jan., 1899; 13943, Jan., 1903, 
Jan. 3, 1905, and Nov. 19, 1907; 16694, July, 1904. An appoint- 
ment to a cadetship at West Point does not discharge an enlisted 
man from the militia of a State. C. 26337, Mar. 16, 1910. 

VI A 1. Section 16 of the act of January 21, 1903 (32 Stat. 778), 
provides "That whenever any officer of the Organized Militia shall, 
upon recommendation of the governor of any State, Territory, or gen- 
eral commanding the District of Columbia, and when authorized by 
the President, attend and pursue a regular course of study at any 
militaiy school or college of the United States, such officer shall receive 
from the annual appropriation for the support of the Army the same 
travel allowances and quarters, or commutation of quarters, to which 
an officer of the Regular Army would be entitled if attending such 
school or college under orders from proper military authority, and 
shall also receive commutation of subsistence at the rate of one dollar 
per day while in actual attendance upon the course of instruction." 

' See Acker 1;. Bell (57 S. R., 356), in which it was held that under the constitution 
and statutes of a particular State, a minor over the age of 18 years is bound by the 
enlistment into the military service of the State, even though the consent of his 
parents was not obtained for such enlistment. 

2 Such enlistments are now forbidden by Cir. 13, Adj. Gen. Office, 1903; and any 
member of the militia or National Guard of any State who now enlists in the Regular 
Army without first having obtained a discharge from said militia or National Guard la 
guilty of the offense of fraudulent enlistment, for which he may either be tried by 
court-martial or discharged without honor, at the option of the Government. Also 
see Cir. 62, War Dept., S. 1908. 



710 MILITIA VI A 1. 

Held, that officers of the Organized Militia attending military schools 
in the operation of the above law are not in the military service of 
the United States. C. 14148-p, Dec. 21, 1907, and Jan. 22, 1908. 
Held, that as attendance by military officers at such schools is, by the 
strongest implication, restricted to officers on the active list, a retired 
officer is not authorized to attend a military school of the United 
States as a student. C. I^IA^-E, Feb. 7, 1908. Held, that a retired 
officer of the organized Militia is not thereby eligible to attend the 
United States Engineer School at Washington Barracks, D. C. C. 
1414^-F, Oct. 29, 1908. Held, that such a militia officer so attending 
a military school of the United States is entitled to the same travel 
allowances as an officer of the Regular Army would have been, had he 
been so detailed. C. I4I48-A, Dec. 6, 1905. 

A captain of the National Guard had successfully completed the 
course at the Infantry and Cavalry School at Fort Leavenworth, Kans. 
Held, that he may be ordered to his home by the governor of his 
State and detailed for the course at the Staff College at Fort Leaven- 
worth, Kans., and, if such detail is authorized by the President, he 
will be entitled to mileage under the above law. C. I4I48-B, July 
12, 1906. An officer of the Organized Militia was attending the Stan 
College at Fort Leavenworth, Kans., and lived in the adjoining 
city of Leavenworth, Tield, that he was not entitled to mileage while 
traveling to and from Fort Leavenworth. C. 1414^-B,^ Nov. 6, 1906. 

In the case of National Guard officers who are attending garrison 
schools of the United States and who are the recipients of commu- 
tation of quarters, Tield, that under the act of March 3, 1909 (35 
Stat. 742), they are entitled to be furnished with heat and light,^ 
which is a lawful charge against the appropriation for regular supplies 
in the act of March 3, 1909. C. I4I48-G, Jan. 19, 1910, Jan. 27 
and June 19, 1911. Held, that a militia officer who is so attending 
a military school or college in the United States is entitled to com- 
mutation of quarters. C. 1414^~^) June 16, 1905. In the case of a 
militia officer who was attending the Post School at Fort Wayne, 
Mich., lield, that he would be entitled to the same commutation of 
quarters that a Regular officer would have been entitled to under the 
same circumstances, but if he were absent during the entire period 
of the course there would be a failure to ' ' pursue a regular course of 
study," which would operate to prevent the right to quarters or 
commutation therefor. C. 1414^~D, Dec. 21, 1907. As the act of 
May 11, 1908 (35 Stat. 114), which provides the means for the pay- 
ment of commutation of quarters, is restricted in its operation to 
"officers of the National Guard," which is synonymous with the term 
"Organized Militia," as used in the act of January 21, 1903, held 
that such funds can not be used to pay commutation of quarters to a 
retired officer of the National Guard of a state or a civilian who 
has, under section 23 of the act of January 21, 1903, become eligi- 
ble for appointment as a volunteer officer and as such is attending 
a military school of the United States. C. I4I48-F, Oct. 29, 1908. 
In the case of militia officers who have become authorized to attend 
the Army Medical School, held, that they are not entitled to draw 
stationery or forage but there is no legal objection to their purchasing 
fuel at the contract rates at the posts where such schools are estab- 

> See 36 E, 1070, Mar. 3, 1911, and G. O. No. 70, W. D., 1910. 
2 See V Comp. Dec, 263 and 592; VI id., 170; III id., 170. 



MILITIA VI A 2 a. 711 

lished as they are allowed quarters. C. IJi-Ij^-A, Oct. 19, 1904. 
Also, Tield, that such a militia officer is not authorized to purchase 
clothing from the Quartermasters Department as the appropriation 
under which clothing is furnished is intended to clothe the Army and 
not to furnish clothmg at cost price topersons not connected there- 
with. C. I4I4S-E, Jan. 22, 1908. Held, that a mihtia officer so 
attending a military school of the United States is not entitled to 
any allowances wliile absent from the school or on ordmary leave or 
sicK leave. ^ 0. Hl/fS-F, Feb. 4, 1909. Held, that a commanding 
officer of a post at which militia officers are attending a garrison 
school should recognize the obligation of those officers to the Organ- 
ized Mihtia of their States, by authorizing their absence during the 
period of their performance of the duty of participating in an ap- 

groaching inaugural ceremony, to which duty their organizations had 
een detailed. C. I4I48-F, Feb. 5, 1909. 

VI A 2 a. The reimbursement of officers for expenses incurred in travel 
is now substantially regulated by the actof June 12, 1906 (34 Stat. 246), 
whicli is supplemented, where the travel is accomj)lished in the execu- 
tion of militia inspection in the operation of section 14 of the act of 
January 21, 1903, by the act of June 22, 1906 (34 Stat. 449), wliich 
provides that traveling expenses incurred in excess of the regular 
mileage allowance shall constitute a charge against the allotment of 
the State in whose behalf the journeys are undertaken. Held, that 
in a case where a Regular officer was assigned to temporary duty 
at Seagirt, N. J., with the National Guard of that State and his 
order carried no allowances except those authorized by the mileage 
law, there is no relief for any excess of expenditure that he may 
have been subjected to in the execution of his duty, and Congress 
must be looked to for the application of a remedy. C. 20369, D,ec., 
1906. Held, that as the act of June 22, 1906, is restricted in its oper- 
ation to the reimbursement of inspecting officers "for the actual 
excess of expenses of travel," a Regular officer who was required, in 
the execution of liis duty of inspecting the Organized Militia of a 
State, to use a telephone, may not be reimbursed under the above 
act but from appropriation for the support of the Quartermaster's 
Department. U. 1414^-^1 July ii> 1908. Held, that as the expense 
incurred by a Regular officer in having the report of his inspection 
of the Organized Militia of a State typewritten was not one properly 
chargeable to any of the other appropriations for the support of the 
military establishment, it should be paid out of the appropriation 
for contingencies of the Army. C. 18112, Sept., 1905. 

VI A 2 b. Retired officers of the Regular Army are assigned to 
duty with the mihtia under authority of the act of March 2, 1903 
(32 Stat. 932), and not under authority of section 20 of the act of 
January 21, 1903 (32 Stat. 779). C. I4I48, Nov. 23, 1903. 

The act of March 2, 1903, also establishes the pay of such officers. 
Held, that an officer so detailed is entitled to the increased pay and 
to the allowances ^ thus authorized from the moment when he reports 
to the governor of ih& State.^ C. 15849, Feb. 4, I904. Held, that 

' See XIV Comp. Dec, 638. 

2 A retired officer of the Regular Army below the grade of major on duty with the 
militia is not entitled to reimbursement for the hire of horse which he used in a parade. 
XV Comp. Dec, 311. 

' See XIV Comp. Dec, 628, for pay of such officer. See XII Comp. Dec, 95. 
Such an officer not entitled to mileage. 



*712 MILITIA VI A 2 b. 

duty with the mihtia is not per se mounted duty. C. 1414^-H, 
Aug. 25,1911. 

Ihe act of April 23, 1904 (33 Stat. 264), authorized the Secretary 
of War to assign retired officers of the Army, with their consent, to 
active duty with the Organized Mihtia. C. 18413, Aug., 1905. That 
act, which authorized full pay for officers so serving, was modified by 
the act of June 12, 1906 (34 Stat. 245), which provided the pay and 
allowances of a major as the maximum pay which a retired officer 
upon such duty should receive. Held, that a lieutenant colonel, on 
duty with the National Guard of a State, is entitled under his detail 
to the pay and allowances which a retired major would receive under 
a hke assignment, namely, full pay and allowances of a major. C. 
23957, Feb. 5, 1909. Held, that a retired officer of the Regular Armv 
may hold any State, county, or municipal office and receive the emol- 
uments of the same without affecting his mihtaiy office or pay in 
any way. C. 14063, Jan. 27, 1903, and Dec. 4, 1909. Held, that a 
retired officer may hold any office in the government of the State 
unless he is prevented from so doing by a law of the State. C. 17764, 
Mar. 24, 1905. Held, that there is no statute of the United States, 
or existing regulation of the War Department, which prohibits a 
retired officer, who is detailed for duty with the National Guard of a 
State, from accepting from the State additional compensation as pay 
or expenses, -and that if such officer holds a commission in the Organ- 
ized Militia of the State to which he is detailed he can legally accept 
from such State the pay and allowances authorized by the law of the 
State. C. I8413, Aug., 1905. Held, that there is no law of the 
United States which prevents a retired officer so detailed from hold- 
ing the office and drawing the pay of adjutant general of a State. 
C. '17631, Mar., 1905. Held, that a retired officer of the Regular 
Army who is on duty with the National Guard of a State has no 
right to demand additional pay from the State except for expenses. 
C. I4O63, Feb. 2, 1910. Held, that the assignment of a retired officer 
to active duty with the National Guard of a State does not place the 
officer on the active list of the Regular Army in the sense in which 
that term is used in section 1222, R. S. Held, in a case which 
arose in a State, where the State law of February 26, 1908, pro- 
vided that "the United States officer detailed for duty 'with that 
State ' shall have the title of military secretary to the governor with 
the rank of 'colonel,'" that such State legislation did not create an 
office in the sense in which that term is used in section 1222, R. S., 
which prohibits an officer of the Regular Army on the active fist 
from holding any civil office. O. 18413, June, 1908. Also held, that 
while on duty with the National Guard of a State a retired officer 
would not vacate his position as an officer on the retired list of the 
Regular Army. C. 14063, Dec. 4, 1909. Held, that there is no 
Federal statute or regulation which would forbid a retired officer of 
the Regular Army on college duty from accepting a commission in 
the National Guard of a State. C. 22170, Oct. 5, 1907. Held, that a 
retired officer who had been commissioned in the National Guard 
would, if the National Guard were called into the service of the 
United States, be entitled to the pay of his militia office during the 
period of such service, but not to the pay pertaining to his office on 
the retired list. C. 14063, Dec. 3, 1909. Held, that the same rule 
would apply during joint maneuvers. C. 1414^-Iij ^^^' 4; 1911. 



MILITIA VI A 2 C. 713 

The act of April 23, 1904 (33 Stat. 264), provides that the Secretary 
of War may assign retired officers to "staff duties not involving serv- 
ice with troops." Held, that he may assign a retired officer of the 
Regular Army to the duty of inspecting the Organized MiHtia. C. 
I414S-E, Mar. 11, 1908. Held, that a retired officer above the grade 
of major, who was on duty inspecting the militia, was not entitled to 
mileage under the act of March 2, 1905 (33 Stat. 831).^ C. 18112, 
Sept. 8, 1905. 

The status of duty which attaches to a retired officer who is 
assigned to duty with the Organized IVIilitia of a State, though 
indefinite in some of its incidents, should be held to apply, in the 
absence of highly exceptional circumstances, to the entire period of 
time intervening between his reporting for duty and his relief there- 
from.' Held, that a governor of a State or Territory is without author- 
ity to grant a leave of absence to a Regular officer who has been so 
placed on duty with the militia of a State, which can be done by the 
War Department only. C. 22330, Nov., 1907. 

VI A 2 c. Section 20 of the act of January 21, 1903 (32 Stat. 779), 
as amended by the act of May 27, 1908 (35 Stat. 403), provides that 
enlisted men of the Regular Army may, upon the application of the 
governor of a State or Territory, be detailed for duty in connection 
with the Organized Militia. Held, that an enlisted man so detailed is 
entitled to pay and commutation of rations, and to quarters, the 
number of rooms bemg fixed in the Army Regulations. Also held, 
that under the act of March 2, 1907 (34 Stat. 1167), he is entitled to 
a sufficient allowance of heat and light.^ Held, further, that the cost 
of maintenance of an enlisted man so detailed constitutes a charge 
against the appropriations for the support of the Army and can not be 
paid out of funds accruing to the several States in the operation of 
section 1661, R. S., and the act of Januaiy 21, 1903, both as amended. 
G. 14148-F, Feb. 6, 1909. Held, further that commutation of 
rations ^ may lawfully be paid in advance to an enlisted man of the 
Regular Army, who has been placed on detached service with the 
Organized Militia of the State of Pennsylvania. 0. 1414^~^} ^ov. 9, 
1909. 

VI A 2 d. The law authorizing the establishment of a force of 
Philippine Scouts vests authority m the President to appoint such 
officers as ''he shall deem necessary for the proper control." Held, 
that in view of the restriction in the above language, the assignment 
of an officer of Philippine Scouts to duty with the nmitia of a Territory, 
would be unlawful. G. 22742, Feb. 11, 1908. 

VI B 1 a. Section 14 of the act of January 21, 1903 (32 Stat. 777), 
in describing what part of the National Guard of a State shall par- 
ticipate in a State camp of instruction, uses the words "such portion." 
HeM, that it is within the discretion of the governor of a State or Terri- 
tory to determine what portion of its Organized Militia "shall engage 
in actual field or camp service for instruction." G. 14l4^~-^i ^^^V ^> 
1905. Held, that the officers of Coast Artillery Reserve organizations 

1 XllComp. Dec, 95. 

^ See XVI Comp. Dec, 287. There is no authority of law for the payment of com- 
mutation of quarters, heat, and light to enlisted men of the Army when detailed for 
service with the militia under the act of May 27, 1908. 

3 For rate see G. 0. 116, par. Ill, W. D., Aug. 29, 1911. 



714 MILITIA VI B 1 b. 

may be ordered to engage in preliminary field or camp service for 
instruction. G. HIJ^S-H, Jan. J,., 1911. 

VI B 1 b. Section 14 of the act of January 21, 1903 (32 Stat. 777), 
contains no restriction as to the place where the "actual field or camp 
service for instruction" shall take place. Held, that that is controlled 
by the governor's discretion subject to the condition that the militia 
of one State can on the mitiative of that State pass through another 
State only with the latter's consent. 0. IJflJfS, Dec. 22, 1903. 

VI B 1 c. The governor of a State asked permission for the First 
Battalion of Artillery (Coast) to camp for three days at the guns at an 
Army post. Held, that the mere location of this National Guard 
organization in camp on the reservation for purposes of instruction 
does not classify the camp as a participation in the encampments, 
maneuvers, or field instruction of any part of the Eegular Army, even 
though Regular officers acted as instructors. The instruction should 
properly be classified as that contemplated in section 14 of the act of 
January 21, 1903. G. I4I48-A, Apr. 30, 190^. 

VI B 1 d. At a State encampment held under section 14 of the act 
of January 21, 1903 (32 Stat, 777), subsistence stores may be sold to 
officers and the sale will be regarded as a sale to the State under 
section 17 of the act of January 21, 1903, and the selling price should 
be the cost to the United States plus 10 per cent for transportation. 
G. 14148, Aug. 5, 1904. 

VI B 1 e (1). As the service of the disbursing officer under section 
14, act of January 21, 1903 (32 Stat. 777), is limited to field or camp 
service, and as quarters are not furnished to officers for this kind of 
service, lield, that commutation of quarters can not be paid to such a 
disbursing officer for the time so spent by him in camp. G. 1414^-^} 
Sept., 1904. 

VI B 1 e ( 2) . A disbursing officer purchased rations under section 
14 of the act of January 21, 1903 (32 Stat. 777). Held, that he can 
take credit for the amount actually spent if the average does not 
exceed the value of the Regular Army ration, but if the average does 
exceed the value of the ration he can take credit to the amount of the 
value of the Regular Army ration only.^ C. I4148-B, Aug. 11, 1906. 

VI B 1 e (3). Wagons were hired by Cavalry troops of a State 
while on a practice march on which they engaged in actual field serv- 
ice for instruction. Held, that under section 14 of the act of January 
21, 1903 (32 Stat. 777), the cost of hiring such transportation is a 
proper charge against the State's afiotment of funds under section 
1661, R. S. G. 14148-A, Oct. 16, 1905. 

VI B 1 6 (4). Two enlisted men of the National Guard, while on 
their way to a State camp of instruction, were taken sick, necessitat- 
ing medical attendance. No medical officer accompanied the troops. 
The troop commander employed medical attendance and now asks 
to be reimbursed for the sum paid. Held, that there is no authority 
in section 14 of the act of January 21, 1903, for the payment of 
medical expenses of sick militiamen who were taken sick while on 
their way to a State camp. G. 16925, Aug. 10, 1909. 

VI B 1 e (5). A member of the organized militia of a State 
became sick with epileptic fits during a State encampment, and was 
so violent that it was necessary to send him under two attendants to his 

» X Comp. Dec, 400; id., 700. 



MILITIA VI 1 e (6). 715 

home. Held, that as the expenses incurred in the transportation of 
this sick man were necessary and reasonable, they are properly pay- 
able out of the State allotment under section 1661, R, S., as amended, 
and section 14 of the act of January 21, 1903. O. I4148-E, Feb. 19, 
1908. 

VI B 1 e (6). Certain farmers of a State claimed remuneration 
for damage done to crops by troops of the National Guard during 
maneuvers held in connection with a State encampment. Held, pay- 
ment of such a claim would not constitute a lawful charge against the 
allotment of the State in the operation of section 1661, R. S., as 
amended, and could be made only as incidental expenses, but only 
when authorized by the Secretary of War; and where before the encamp- 
ment, a lease had been executed providing for placing the leased 
premises in the same condition in which they were at the beginning 
of the encampment. C. I4148-G, Oct. 1, 1909. 

VI B 1 e(7). Certain officers purchased transportation to a State 
encampment, as prior to the necessities of each case it was not possi- 
ble for the disbursing officer to secure the transportation or make 
arrangements for it. Held, that the State disbursing officer may 
reimburse these officers for the expenses of such travel in those cases 
where the travel was properly ordered and the expenditures were 
actually made. 0. I4148-D, Oct. 31, 1907. 

VI B 1 e (8). The horse of a staff officer had been foundered in the 
service while the officer was in camp and the horse was left behind 
until it should be in fit condition to be shipped. Held, that the State 
disbursing officer may lawfully reimburse the owner, a mounted 
officer, for the amount expended by him in the transportation of the 
horse, which had been used by a member of his staff, from the place 
of encampment back to his home. C. I4148-D, Oct. 12, 1907. 

VI B 1 e(9). During maneuvers in a State $98.65 was expended 
from the appropriation for "Encampment and maneuvers. Organized 
Mihtia," in entertaining the visiting foreign military attaches. Held, 
that the funds accruing to the State under that appropriation are 
subject to the restrictions in sections 15 and 21 of the act of January 
21, 1903 (32 Stat. 778), as amended, and are not available for paying 
the cost of entertaining foreign military attaches, who may be present 
at a State encampment. C. I4148-G, Dec. 23, 1909. 

VI B 2 a. Preceding joint maneuvers with the Reguler Army, 
lands were leased for maneuvering purposes. Held, that these 
leases of lands to the United States operated to deprive the lessors 
of the use and possession of such land during the period of the 
maneuvers and to that extent prevented their use by the lessors 
for grazing purposes.^ C. 16525, Sept. 26, 1904- Before the begin- 
ning of the lease certain of the lands were used for quartermaster 
and commissary depots under conditions which indicated an under- 
standing between the proprietor and the quartermaster that the 
lands were to be so used for a reasonable compensation. ^ Held, 
that there was an impHed contract for a reasonal^le compensation 

* XI Comp. Dec, 293, in which it is held that the United States is not liable for 
damage by fire to lands leased as a military maneuver camp. 

2 Payment in advance by month, quarter, or year, for leased lands of which the 
lessee has been placed in possession by the lessor is not in violation of sec. 3648 R. S. 
(XII Comp. Dec, 782.) 



716 MILITIA VI B 2 b. 

for the use and occupancy of the premises from August 1, 1904, to 
August 25, 1904, and although leases for that period which were 
made out after August 25, 1904, are ineffectual to create an actual 
term, they may be treated as a liquidation of the claim for use and 
compensation. C. 16525, Nov. 16, 1904.^ 

VI B 2 b. When the Organized Militia and the Regular Army 
serve together as contemplated in section 9 of the act of May 27, 
1908 (35 Stat. 402), which amends section 15 of the act of January 
21, 1903, held^ that the one hundred and twenty-fourth article of war 
requires that no officer of the mihtia of a particular grade can rank 
anv Regidar officer of that grade. C. UU8-F, Sept. 12, 1908. 

VI B 2 c. Section 15 of the act of January 21, 1903 (32 Stat. 777), 
provides for "participation" of the mihtia in "encampment, maneu- 
vers and field mstruction" of any part of the Regular Army. Held, 
that "participation" begins when the movement from the several 
rendezvous begins and ends when the troops reach the place of their 
respective rendezvous on their return. During tliis period of time 
they are entitled to the same pay, subsistence, and transportation as 
troops of the Regular Army. C. 14H8, Aug. 4, 1903. 

VI B 2 d. In the annual acts of appropriation for support of the 
Army, certain sums are provided for the expenses of joint encamp- 
ments of the Regular Army and Organized Militia. Held, that none 
of these funds can lawfully be transferred to a disbursing officer of 
a State, but they must be disbursed by the regularly appointed 
officers of the several staff departments of the Regular Ai'my. C. 
14148-F, July 1, 1908, and Dec. 13, 1910. 

VI B 2 e. Upon a request for information as to the proper manner 
of securing transportation for the Organized Militia of a State to 
and from the maneuvers on a military reservation, it was held, that 
under section 15 of the act of January 21, 1903 (32 Stat. 777), 
transportation of the mihtia forces must be obtained in the same 
way and in pursuance of the same statutes and regulations that 
would be apphed in obtaining transportation for corresponding 
detachments of the Regular Army. C. I4148, Sept. 11, 1903. 

VI B 2 f. As the adjutant general and certain other staff officers 
of the Organized Militia of a State were not designated by the Secre- 
tary of War to take part in the joint encampment, held, that the hire 
of an automobile for their transportation from the State capital to 
the place of the joint encampment of the Regular Army and the 
Organized Mihtia does not constitute a lawful charge against the 
appropriation for the joint encampment of the Regular Army and 
the Organized Mihtia. C. I4148-H, Sept. 6, 1910. 

VI B 2 g. At a joint encampment the following question was raised, 
viz., can the officers and enlisted men of the Organized Mihtia who 
participate in such joint encampment be permitted to purchase sub- 
sistence stores for sale to officers and enhsted men 01 the Regular 
Army? Held, that such stores should be sold to them at cost prices, 
that is, at the same prices which are charged to officers and enlisted 
men of the Army under the same circumstances. C. 14^48, Aug. 5, 
1904. 

VI B 2 h. As section 15 of the act of January 21, 1903 (32 Stat. 
777), restricts the allowances to which the National Guard becomes 
entitled when they participate in encampments with the Regular 



MILITIA VI B 2 i. 717 

Army to "pay, subsistence, and transportation,"^ lield, that forage 
would not be allowed. C. UH8, July 13, 1903. 

VI B 2 i. Rations are furnished to the National Guard when it par- 
ticipates in encampment with the Regular Army under section 15 of 
the act of January 21, 1903 (32 Stat., 777). Held, that fuel for cook- 
ing purposes, under the Army Regulations, may be issued, as it is 
used to cook the ration, and hay for bedding purposes may be issued, 
as it is a minor allowance which was probably included in the sub- 
stantial allowances mentioned. C. 1414^, Sept. 12, 1903. 

VI B 2 j. The appropriation act for the Army of April 23, 1904 
(33 Stat., 265), contained a clause, i. e., **For purchase of subsistence 
and supplies, one hundred thousand dollars" in connection with joint 
encampments of the militia with the Regular Army. Held, that the 
language is broad enough to authorize the employment of civilians to 
bake bread under the same circumstances which would justify their 
employment for the same purpose in connection with troops of the 
Regular Army. C. 16524, July 27 and Aug. 3, 1904. .The same 
clause of that appropriation can be used to pay for the ordinary labor 
necessary for the handling of subsistence stores in the maneuver camp 
composed of both Regulars and Volunteers, but held, that the pay for 
the labor required should be made from the appropriation for the 
subsistence oi the Army and the subsistence of the militia in -propor- 
tion to the strength of the Regular and militia forces composing the 
camp, a 16524, July 27, Aug. 3 and 8, 1904. 

VI B 2 k. Bakery profits are neither pay nor allowances. Held, that 
a militia organization which, under section 15 of the act of January 21, 
1903 (32 Stat., 777), participates in an encampment at an Army post 
for less than 10 days is not entitled to share in the bakery savings of 
the post. C. 14148-E, May 21 and June 10, 1908. 

VI B 2 1. A Regiment of Heavy Artillery, of the National Guard, 
which was participating in a joint Army and Navy maneuver, con- 
tracted various bills for transportation, labor, and material, and the bill 
of the superintendent of State arsenal for board, lodging, and trans- 
fers while on State duty attending to business at the camp of the 
guard. Held, that officers of a State National Guard can- not con- 
tract such bills as they deem desirable at their discretion without 
reference to or authoritj- of the proper bureau of the War Department, 
for pa/ment under section 15 of the act of January 21 , 1903. C. 14H^, 
Oct. 28 and Dec. 18, 1903, and Jan. 28, 1904. 

A private of the National Guard, who had been on duty at Camp 
Capt. John Smith, Jamestown 'Exposition, was not able, because of 
sickness, to accompany hi.s regiment home and was placed in a civil 
hospital. Held, that the bill for his hospital expenses, which was 
incurred after the breaking of camp, can not be paid from funds of 
the United States in the hands of the disbursing officer. C. 1414^-D, 
Oct. 3 and I4, 1907. 

VI B 2 m. The act of appropriation for the support of the Army, of 
April 23, 1904 (33 Stat., 265), appropriated money for the militia par- 
ticipating in joint encampment with the Regular Army, inter alia, for 
" transportation of the militia and its supplies, clotliing, and equipage, 
lease of land, and damage to property. " Held, that the above clause 

' An officer's travel allowance is limited to actual transportation (XI Comp. Dec, 
545). 



718 MILITIA VI 2 m. 

must provide for the payment of damages naturally and necessarily 
arising out of the use of the lands leased for the purpose of military 
maneuvers, as, for instance, if considerable bodies of troops march 
through and over the fields in the execution of tactical problems, a 
certain amount of damage to growing or standing crops will inevitably 
ensue; fences, detached buildings, and inclosures will also be so used as 
to make repairs necessary, but the theft of fowls and animals, the 
larceny or felonious taking or carrying away of articles of personal 
property, or the wanton destruction of such property, or injuries which 
are not susceptible of compensation in the manner hereinbefore de- 
scribed, are damages which are not payable out of the above appro- 
priation, nor are they susceptible of liquidation by a resort to the 
method provided in the leases. Recommended, that the several 
governors interested in the maneuvers be advised that claims for 
damages due to tortious acts of individuals can not be paid out of any 
appropriations of Congress and that for that reason the States to 
which the militia forces belong will be expected to provide for their 
adjustment, C. 16525, May 19, 1904- Held, that damages to prop- 
erty used during maneuvers can only be paid if there is a contract, 
express or implied,^ providing therefor; that is, they would then be 
included as a part of the compensation for the use of the land. C 
14971, Aug. 28, 1903. Held, that the executive departments can 
neither entertain nor adjudicate claims for unliquidated damages to 
buildings, crops, fences, or land, by troops during maneuvers. C. 
14971, July 23, 1903. Held, that such claimants must have recourse 
to Congress or, in a limited class of cases, to the Court of Claims. 
a 16525, May 19, 1904. 

During the progress of joint maneuvers with the Regular Army, the 
troops entered upon certain parcels of land which had not been made 
the subject of leases. Claims were made for rent, and for injury to 
crops, fences, etc. Held, that the claim for rent should be rejected, 
but that the claim for injury to crops and fences -after adjustment 
should be paid. C. 16525, Nov. 3, 1904. 

A railroad company that carried National Guard troops to a joint 
encampment submitted a claim for $8.30 for loss of equipment on 
baggage car which was so used. Held, ih.dii the War Department can 
not pay this claim for the reason that none of the appropriations at 
the service of the War Department can be used for the adjustment 
of unliquidated damages unless express provision has been made by 
contract to cover such adjustment. Also, held, that the equipment 
lost was not a legitimate part of the cost of transportation. C. 14971, 
July 29, 1904; 20402, Sept. 26, 1906. 

' Sec. XVI Comp. Dec, 589, for questions arising when premises are occupied without 
leases. Dennis v. U. S., 20 Ct. Cls., 119; Brannen v. U. S., id., 219; Pitman v. U. S., 
id., 253; I Comp. Dec, 261, 283; II id., 174, 488; IV id., 446; V id., 693, 770; VI id., 707. 
But payment may be made for work or materials furnished and received under a 
contract, express or implied, though the price is not fixed by such contract. McClure 
V. U. S., 19 Ct. Cls., 179; Dennis v. U. S., 20 id., 119; Pitman v. U. S., id., 253; I 
Comp. Dec, 283; II id., 365; III id., 365, 565; VI id., 648, 953; VII id. (dated Mar. 
12, 1901). And where it is to the interest of the United States the Secretary of War 
may enter into a supplemental contract with a contractor, discontinuing an existing 
contract on payment to the contractor of a stipulated sum. U. S. v. Corliss Steam 
Engine Co., 91 U. S., 321; Satterlee v. U. S., 30 Ct. Cls., 31; III Comp. Dec, 54; 
VI id., 953. See 4 Op. Atty. Gen., 327; 6 id., 499, 516; 9 id., 81; 14 id., 24, 183. The 
act of Mar. 3, 1909 (35 Stat., 740), is available as an appropriation act for the pay- 
ment of damages to property. 



MILITTA VI B 2 n. 719 

VI B 2 n. The United States is not responsible for the unlawful acts 
of its soldiers or employees. The remedy in such a case is a suit 
against the individuals who commit the trespass or an application 
for rehef to Congress. C. 16525, May 19, 1904. Held, that the 
United States is not legally responsible for torts of its officers or 
agents, whether of commission or omission. C. 16525, May 19, 
WOJ).} Held, that it is not within the power of any of the executive 
departments to compensate an individual for damages due to tortious 
acts committed by the Organized Militia of the States. If there be 
any remedy for such injuries, it must consist in an apphcation to 
the State or States by wnose troops the acts were committed. More- 
over, it is beyond the power of an officer of the War Department to 
commit the United States to the payment of tortious damages; 
and a contract purporting to do so would be without operative force. 
C. 17585, Feb. 27, 1905. A private horse that had been used in joint 
maneuvers was shot by a muitiaman after the encampment while the 
man and his organization were on the cars en route home, about 
nine hours' journey from the encampment grounds. Held, that the 
iniufy done was not due to the act or order of any person in the 
military establishment, and that reimbursement can not lawfully be 
made by the United States, and the injured party should look to his 
State or to the individual by whom the animal was shot for compen- 
sation for the loss he has sustained.^ C. 16961, Oct. 1, 1904- 

VI C 1 a. If a quarter section of the public domain has been with- 
drawn from entry and set apart for use as a rifle range, held, that no 
further action would be necessary as a condition to the expenditure 
of money in the improvement of the range. C. 19798, Aug., 1909. 

VI C 1 b. The title to the lands purchased under the provisions of 
section 1661, R. S., as amended, for use as State target ranges wiU 
vest in the United States. Held, that the relation of the State or 
Territory or district to such lands is that of a trustee vested with the 
charge and charged with the administration of such properties for 
the purpose for which they were acquired. C. 19798, May 29, 
1906. Held, that it is not legal to enter into a contract binding the 
United States for the purchase of property from future appropriations. 
a 20989, Mar. 15, 1909; 20864, Feb. 6, 1909.^ Held, that after 

E roper notice has been received that the title has been approved 
y the Attorney General, payment may be made for the land, the 
deeds recorded, and all papers forwarded to the War Department. 
C. 20864, Apr. 3, 1907. Held, that a State may be the vendor and 
pay for the range out of its apportionment under section 1661, R. S., 
as amended, the title to be approved by the Attorney General 

» Pitman v. U. S., 20 Ct. Cls., 255; Gibbons v. U. S., 8 Wall., 269; id., 7 Ct. Cls., 
105; Morgan v. U. S., 14 Wall., 531. 

Judge Story in his work on agency, sec. 319. says: "It is plain that the Government 
itself is not responsible for the misfeasances or wrongs or negligencies or omissions of 
duty of the subordinate officers or agents employed in the public service; for it does 
not undertake to guarantee to any person the fidelity of any of the officers or agents 
whom it employs, since that would involve it, in all its operations, in endless embarrass- 
ments and difficulties and losses, which would be subversive of the public interests." 

^ While the Government is not pecuniarily responsible for torts committed by officers 
and enlisted men, the latter are so responsible, and aside from their liability to civil 
suit may and should in cases covered by the fifty-fourth article of war be proceeded 
against as required by that article. 

3 See sec. 3736, R. S. 



720 MILITIA VI C 1 C(l). 

under section 355, R. S. C. 2086^, Jan. 7, 1909. The provisions 
of section 355, R. S., have been construed as not forbidding the 
purchase of land by the United States prior to the consent of a legis- 
lature being obtained, but as applying to the expenditure of money 
upon such land after purchase.^ Reld, that the recording of the deeds, 
etc., is a proper charge against the amount allotted to the State for 
the purchase of a target range. C. 2086 Ji-, Apr. S, 1907. Held, 
that the payment from a State's allotment under section 1661, R. S., 
as amended, of the following expenses connected with the acquir- 
ing of a target range are allowable if the acquisition of the range is 
consummated: (1) Expense of travel in secuiing an option; (2) 
expenses involved in securing the consent of the owners to sell; (3) 
the expense of preparation of the title for submission to the Attorney 
General; (4) the expense of the necessary surveys; (5) the expense 
of the purchase of the land. Held, however, that the surveying of 
a proposed range and the obtaining of options to lands which were 
not later required can not properly be charged to the allotment, nor 
is it proper to pay a consideration for an option. C. 19798', Dec. 
29, 1909.'' 

VI C 1 c (1). The renting of grounds for target ranges, or of 
grounds or buildings for shootmg galleries, together with the expenses 
necessarily attending their adaptation for use in the instruction of 
the Organized Militia in small-arms' firing are proper subjects for the 
expenditure of the sums, accruing to the State m the operation of 
section 1661, R, S., as amended, and act of January 21, 1903 (32 
Stat. 775), as amended by act of June 22, 1906 ^ (34 Stat. 449). G. 
1414^-B, Sept., 1906. Held, that the approval of the Secretary of 
War is not required in the case of lands leased for target-range pur- 
poses under the act of June 22, 1906 (34 Stat. 449), but the approval 
of the governor of the State is required. G. 20989, Apr., 1907. 
Held, that if the lease contains an option for the purchase of the 
property the exercise of the option would require the approval of 
the Secretary of War. G. 20989, July 5,1907. 

VI C 1 c (2). It is not usual to require an abstract of title to 
property leased by the Government, where the lease is not for a long 
term of years and does not call for payment of the rental for the 
entire period in advance. If the lease of land for use as a target 
range is for a long term of years and the rental is paid in advance, 
the lease should be properly executed, acknowledged, and recorded, 
and evidence should be furnished of the title of the lessor, in order 
that the Government may be assured of the occupancy during the 
term for which the rental has been paid. Where the lease is from 
year to year, or for less than five years, and calls for the rental to 
be paid from year to year during the lease, it is assumed that the 
party in possession of the premises, claiming as owner and executing 
the lease as such, is entitled to execute the lease, and it is not usual 
to require evidence of his title. The description of the property 
should be in terms sufficient to identify it, but need not be as exact 
as is required in a conveyance of property. If the lease is for a short 
term, it is not necessary that the signature of the lessor should be 

> 15 Op. Atty. Gen., 212. 

2 III Comp. Dec, 216; VI id., 133. 

3 See XIV Comp. Dec, 836. 



1 



MILITIA VI C 1 C (3), 721 

witnessed, although it would be preferable to do so. Unless evidence 
as to title is furnished, it is believed that the lease should not stipulate 
for the rental to be paid in advance. G. 20989, June, 1909, Apr. 
and May, 1910. Held, that the lease of land for use as a target 
range should show the purpose for which the premises are leased. 
a 20989, Jan., 1907. 

VIClc(3). After the allotment of funds apportioned under 
section 1661, R. 8., for the purpose of leasing land lor use as a target 
range, the details of the lease devolve upon the State authorities, 
and there is no objection to the payment of the sum due on its lease 
in advance. Held, that such a lease may extend over several years, 
G. 19798, May, and June, 1907. As no contract can be made that 
will bind future appropriations by Congress, held, that it would 
not be proper to enter into an obligation to lease land for use 
as a target range, to be satisfied out of future allotments wliich 
may not materialize; but money could be set aside from allotments 
of appropriations already made, of the rental foi» the entire period 
of the lease, as the provisions of section 3690, R. S., relating to expen- 
ditures of annual appropriations for the services of the fiscal year 
only has been held not to apply in the accounting of funds issued to 
the militia under section 1661, R. S., and section 14 of the act of 
January 21, 1903._ G. 21506, Oct., 1907; I4148-B, Jan., 1906. There 
is no legal objection to a lease for a tenii of five years from May 1, 
1907, for a lump consideration, payable in advance, as in the account- 
ing for the appropriation made by section 1661, R. S., as amended, 
the fiscal year is not considered. G. 21506, Oct., 1907; Mar. and 
July, 1908; 20989, Dec, 1908.^ A lease for a target ran^e was for 
10 years. Held, that unless there are funds from the existmg appro- 

E nation to meet the rental for the entire period, a stipulation should 
e inserted in the lease to the effect that its continuance beyond one 
year is conditioned from year to year upon future appropriations 
from which the rent can be paid. G. 20989, Dec, 1909, Mar., April, 
and May, 1910. Held, that there would be no objection to an option 
in such a, long term lease, on the part of the lessee to terminate the 
lease upon giving 90 days' notice. G. 21506, Oct., 1907. 

VICl c(4). The property intended to be leased was not de- 
scribed in terms sufficient to identify it, but held, that if a certain 
''strip of land" answering to the description is used for target-range 
purposes during the period specified, the lease followed by such use 
of the premises may be regarded as sufficient for the purpose in 
view. The rent, of course, should not be paid m advance. G. 
20989-A, Apr., 1910. 

VI C 1 d. An officer of the Orgaiuzed Militia traveled under compe- 
tent orders in connection with the acquisition and development of tar- 
get ranges. Held, that he was entitled to his actual expenses for 
travel and subsistence out of the funds allotted in the operation of 
section 1661, R. S., as amended.^ C. I4148-E, Feb. 5, 1908; 19798, 
Apr., 1908. 

VI C 1 6. If a lease for a target range provided that the buildings 
should be insured, held, that the expenditure involved in taking out 

1 See XII Comp. Dec, 782. ^ XIII Comp. Dec, 69. 

93673°— 17 16 



722 MILITIA VI C 1 f. 

the insurance was a proper one, and that the poUcy should be kept 
with the other papers in regard to the lease in the custody of the dis- 
bursing officer or his successor, C. 20989, Apr., 1908. The above 
expenditure would be a part of the consideration for the rental of the 
property. But held, if there is no provision in the lease requiring the 
lessee to insure the building, the payment of premium for insurance 
would not be a proper charge agamst the appropriation.^ C. 20989, 
May, 1908. 

VI C 1 f . A team of mules was purchased out of State funds for use 
on a State rifle range. Held, that there is no authority for issuing 
forage purchased from funds accruing in the operation of section 1661, 
R. S., for mules so purchased, and the necessary forage must be pur- 
chased from State funds. C. I4148-G, Dec, 1909. 

VI C 1 g. The necessity for the presence of water on a target range 
in case of fire, and also for the use of the men, is well understood. 
Held, that if it is necessary to dig a well and equip the same with a 
pump and tanks to render a range suitable, the necessary expense 
connected therewith would be a proper charge against the apportion- 
ment of that State in the sum appropriated by Congress June 22, 
1906 (34 Stat. 449). C. 19798, July, 1907. 

VI C 1 h. A State leased a target range with funds from its allot- 
ment under section 1661, E,. S. A Mr. , under a claimed prescrip- 
tive right, proposed to run a road along the beach in such a way as 
to seriously interfere with the operations of the range, as the road 
would be in the danger zone between the firing point and the bay. 
Held, that although a United States appropriation is used for the 
payment of the rental, the lease is one entered into by the State 
with the lessors, and the matter is one for the consideration of the 
State authorities, who should take it into the State courts for the 
purpose of seeking whatever remedy is necessary and proper. C. 
21506, Oct. 30, 1907. 

VI C 1 i. On request by the Chief of Division of Militia Affairs for 
an opinion as to the membership of a board appointed to examine 
into claims for damages to property because of target practice, it was 
lield that it is usual for leases of land for target practice purposes to 
stipulate, concerning the membership of the board to pass on damage 
to the property, that one member shaU be appointed by the lessor, 
one by the lessee, and the third by these two so appointed, and that 
their finding shall be final when approved by the disbursing officer or 
by some general officer of the militia. C. 20989-A, Apr. 28, 1910. 

VI C 1 j. The lease of a tract of land for use as a rifle range provides 
for the payment, inter alia, of "damages done as specified to crops and 
aU other property on said premises." A claim was submitted for 
$24.75, the value of fruit trees which were destroyed or removed in 
order to better adapt the premises for the purposes for which they 
had been leased. Held, that the claim is a legitimate claim against 
the funds placed to the credit of the disbursing officer, under section 
1661, R. S., as amended. C. 20989, May, 1909. 

VI C 1 k. Land was purchased from appropriations made by Con- 
gress for the use of the militia of the State as a rifle range, the title 

* XIV Comp. Dec, 836. Insurance of buildings on a range that has been leased is 
not authorized under the act of June 22, 1906 (34 Stat. 450). 



MILITIA VI c 2 a. 723 

being in the United States. Held, that it might be leased for use as a 
pasture under such conditions as would not interfere in any way with 
the use of the range for the purposes for which acquired. The rent 
would belong to the United States, and should be deposited to the 
credit of miscellaneous receipts. It would, however, be legal for the 
adjutant general of the State to authorize the use of the range for pas- 
ture, under a revocable hcense, and conditions might be imposed re- 
quiring the licensee to do certain work, under the supervision and to 
the satisfaction of the adjutant general, in the nature of betterments 
of range. C. 26465, Apr., 1910. 

VI C 2 a. The act of June 22, 1906 (34 Stat. 449), makes provision 
in favor of the militia for the promotion of rifle practice. Held, that 
that appropriation covers payment of salary and expenses of inspec- 
tors engaged in the work of promoting rifle practice within a State, 
except during encampment, maneuvei"s, etc., when they, with other 
militia are entitled to pav, transportation, and subsistence under 
another appropriation. Also lield, that the act of June 22, 1906, 
would not cover the payment of a yearly sum to officers or enlisted 
men of the Organized IMilitia of a State, where the laws of a State 
provide for the payment of 3 cents per shot for from 50 to 250 rounds 
fired by each man on a State range during the year. C. 20168, Aug. 
8, 1906. Held, that the expenditure for the incidental expenses of 
carrying on rifle matches, including pay of men working targets and 
purchase of prizes can only become a proper charge against the allot- 
ment to a State under section 1661, R. S., as amended, where the 
subject presented has been made the subject of the favorable exercise 
of discretion on the part of the Secretary of War, in which case these 
expenditures would be properly chargeable to that portion of the 
allotment set aside for the promotion of rifle practice. C. 20168, 
July 15, 1909. 

VI C 2 b. The service of teams of 5 men from each company of the 
National Guard of a State at a target competition ordered by the gov- 
ernor, held, to be "actual field or camp service for instruction," and 
the members of the teams entitled to pay, subsistence, and transporta- 
tion under section 14, act of January 21, 1903.^ C. lJf.lJi.8-A, Aug. 
21, 1905. 

VI C 2 c. On request for information as to whether or not State 
teams at the annual competition at Seagirt, N. J., or elsewhere, may 
be paid from funds accrumg to the several States under section 1661, 
R. S., and section 14 of the act of January 21, 1903 (32 Stat. 777), 
held, that transportation^ and subsistence may be so paid. C. 14-148, 
Feb. 11, 1903. Held, also that the cost of commutation of rations 
at a rate specified in Army Regulations would constitute a proper 
charge in favor of enlisted militia competitors participatmg in 
matches at Seagirt, N. J., against the allotment accruing to a State 
in the operation of section 14 of the act of January 21, 1903 (32 Stat. 
777). _ C. U148-A, May 2, 1905. 

A rifle team to represent a State in the national match is made 
up of men from different companies. Held, that each man, respec- 
tively, is entitled to pay, transportation and subsistence under section 

» X Comp. Dec, 477. 

2 XIII Comp. Dec. 715, an officer not entitled to mileage. 



724 MILITIA VI D 1. 

14 of the act of January 21, 1903, from the date of starting from 
the station of his company.^ C. 1414.8-3, Aug. 10, 1906. 

A team composed of commissioned officers and enlisted men 
having been selected to represent the Organized Militia of a State or 
Territory at the national match, actually attends the national com- 
petition for a greater period of time than necessary to shoot the 
national match, and participates in prior matches. Held, that while 
in attendance on the national match the subsistence of the enlisted 
men will be defrayed from the support of the Army and while in 
attendance at the prior matches the subsistence of the enlisted men 
will be defrayed from the funds accruing to the State under its 
apportionment under section 1661, R. S. The commissioned officers 
must subsist themselves from their pay as do regular officers.^ C. 
UU8-G, Aug. 19 and 20, 1909. 

An organization of artillery in a State was classed as reserve 
militia and not a part of the National Guard of the State. It does 
not receive any funds from the State's apportionment under section 
1661, R. S. Held, that service in that organization does not count 
as service in the National Guard of the State, that can be used to 
render men eligible to serve on the State rifle team at the national 
match. C. 19798, July, 1907. 

On a request that five officers of the National Guard be per- 
mitted, as spectators, to accompany the State team of 18 to the 
national match at Seagirt, N. J., it was Jield, that transportation, pay 
and subsistence can not be allowed them. C. lJj.l/f8-A, June 3, 1905. 

VI D 1. Section 18 of the act of January 21, 1903 (32 Stat. 778) 
provides that each State or Territory shall, during the year next 
'preceding each annual allotment of funds in accordance witn section 
1661, R. S., as amended, require every company, troop and battery 
in its Organized Militia, not excused by the Governor, to participate 
in practice marches, camps of instruction, or drill instruction at 
armories, or target practice for a stated time, or number of days, 
and have required during such year an inspection by an officer of the 
militia or of the Regular Army. Held, that the word ''year" refers 
to a calendar and not a fiscal year. C. 14^4-3, May 20, 1903. 

VII A. Section 1661 R. S., as amended by the act of June 22, 1906 
(34 Stat. 450), makes provision for the promotion of rifle practice. 
Held, that the cost of transportation ^ of freight of target supplies from 
the State arsenal to the different rifle ranges in the State is a proper 
charge against the above appropriation. C. 14-148-F, Apr. 16, 1909. 
Also held, that the above appropriation includes authority to pay for 
the storage of equipment pending the completion of the lease of the 
target range, and to pay the dray charges from the place of storage 
to the place where the equipment is to be installed. C. IAI48-C, 
Feb. 9, 1907. 

VII B. The cost of transporting new material and supplies which 
are issued by the staff departments to the Organized Militia will be 
borne by the United States and paid out of ''Transportation of the 
Army," But held, that the cost of return transportation from the 

' X Comp. Dec, 392 and 479. 
' X Comp. Dec, 400 and 479. 

^ See XIII Comp. Dec, 420. Appropriations for Regular Army not available for 
payment of transportation of militia. 



MILITIA VII C. 725 

State armories to the depots and arsenals of the United States can 
not be paid from "Transportation of the Army." Also, held, that 
articles of equipment and supplies wliich have been rendered unser- 
viceable by fair wear and tear in the service, must be transported at 
the cost of the State to which tlie}^ have been issued under its appt)r- 
tionment of section 1661, R. S. Also, held, that repairs made neces- 
sar}'' by reason of unavoidable accident or fair wear and tear in the 
service can not be differentiated from those wliich have been made 
necessary through neglect or carelessness or avoidable accident, in 
determining the cost of payment of transportation. C. 1414^-G; 
Dec. 4, 1906, Apr. 18, 1907, Mar. 2^, 1908, Jan. 5, 1909, and May 6, 
1910; 1U55, Feb. 27, 1908. 

VII C. The act of April 23, 1904 (33 Stat. 265), forbids the pay- 
ment of any of the expenses of the Organized Militia iri joint encamp- 
ment with the Regular Army out of funds a])propriated for the 
Regular Army, and the act of June 12, 1906 (34 Stat. 249), limits the 
expenditure of funds appropriated for expenses of the Organized 
Militia so participating in joint encampments to the period of time 
from the date of leaving the home rendezvous to date of return thereto.^ 
Held, that a State can not be reimbursed for freight on blankets and 
ponchos shipped from the State arsenal to stations of the different 
companies as part of their equipment for movement to the camp of 
instruction. C. I4I48-C, Feb. 15, 1907. 

VII D. The Comptroller of the Treasury having decided that the 
travel of the rifle team of the Territory of Hawaii from Honolulu to 
Camp Perry, Oliio, and return, under orders from the War Depart- 
ment, arrangements having been made by the Territorial authorities, 
was properly chargeable against the pro rata amount allotted by the 
Secretary of War to the Territory of Hawaii from funds appropriated 
by Congress for the support of the militia, and that the travel of the 
team is therefore as troops of the United States, and that the laws 
relating to the transportation of United States troops apply ;^ and 
that the team is entitled to transportation at a rate not to exceed 50 
per cent of the compensation for such Government transportation 
over 50 per cent land-grant lines as shall at that time be charged to 
and paid by private parties to any such company for like and similar 
transportation, and it is also entitled to bond-aided deductions over 
the Central Pacific bond- aided line. Held, that the above decision 
of the comptroller would be held to apply to rifle teams from the dif- 
ferent States as well as to the team from Hawaii, as the orders for such 
travel are issued with the prior sanction of the War Department, and 
the payment for the expense of executing such orders is made from 
appropriations by Congress, expended, as stated, through a disbursing 
officer of the United States.' C. 19798, Avg., 1907. 

VII E. A railroad claimed that the Militia of a State while travel- 
ing under War Department orders was not entitled to the 50 per 
cent land-grant reduction which is allowed the United States when 
regular troops are transported. Held, that the travel required of 
Organized IVIihtia under the orders of the War Department is as troops 
of the United States and that the laws relating to the transportation 

^For transportation of horses of mounted officers from home rendezvous to the 
place of encampment and return see X Comp. Dec, 227. 

^ See X Comp. Dec, 227, Transportation i)f horses of mounted officers. 
' See Comptroller's Decision published in Cir. No. 41, June 22, 1907. 



726 MILITIA VII F. 

of United States troops apply. The payment under the act of March 
23, 1910 (36 Stat. 251 and 255), for such travel should, therefore, be 
governed by the same restrictions as apply to the transportation of 
troops of the United States.^ C. I4I48-G, May 10, 1910; 19798, Aug. 
8, 1907; 14148, Aug. 22, 1907. 

VII F. The spring inspection of militia batteries required travel 
by an armament foreman of a district. Held, that this travel is a 
lawful charge against the funds accruing to the State in the operation 
of section 1661, R. S., and section 14 of the act of January 21, 1903, as 
amended. C. I4I48-F, Mar. 13, 1909. 

VIII A. The intent of Congress in its legislation respecting the 
militia has been to contribute to its support by providing the arms, 
armament, clothing, and equipment which were necessary to prepare 
it for active service, leaving to the States the duty of providing its 
armory facilities and current expenses, including such outlay as might 
be found necessary for the security and preservation of the armament 
and military stores provided for its use by the General Government. 
Held, that the cost of the installation of wall lockers in the barracks 
to preserve arms and equipment should be defrayed by the State and 
not by the United States. C. 11083, Aug. 22, 1901. Held, that 
wall lockers can not be supplied under section 3 of the act of June 22, 
1906. C. 14148-C, May 23, 1907. 

VIII B. Where aliens desired to use a State armory for drill 
purposes; suggested ih.&i, as the association of aliens might result in 
acts constituting a violation of the neutrality laws and, as such, call 
for action on the part of the proper departments of the United States 
Government with a view to the maintenance of its neutrality obliga- 
tions, the proposed organization of aliens be regarded with disfavor, 
and the Department of State be requested to advise the proper State 
authorities of the consequences which may ensue upon the granting 
of permission to use the State armory for the purposes above men- 
tioned. C. 18088, Sept. 7, 1910. 

IX A 1. Blank forms and blank books prescribed for use of the 
Army are "supplies" within the meaning of section 17 of the act of 
January 21, 1903 (32 Stat. 778), and are, therefore, subject to issue 
or sale as therein provided, to State authorities for the use of the 
militia. C. I4148-C, Jan. 29, 1907. Held, that the expense of 
printing blank forms for the use of the Organized Mihtia 01 a State 
would constitute a proper charge against its allotment under section 
1661, R. S., as amended, as authorized in the first part of section 17 
of the act of January 21, 1903 (32 Stat. 777). C. I4148-B, Nov. 3, 
1906. Held, that a cashbook such as is supplied to disbursing offi- 
cers of the Quartermaster's Department, can be issued as a part of 
a State disbursing officer's equipment under the last clause of sec- 
tion 14 of the act of Januar^r 21, 1903. C. I4148, Dec. 29, 1903. 
Held that the issue of clothing in stock to a State upon proper requisi- 
tion, which clotliing is not needed to supply the current demands of 
the Regular Army, is mandatory, provided the sum standing to the 
credit of the State in the operation of section 1661, R. S., is enough 
to reimburse the Department for the cost of the articles called for. 
C. 14148-F, Oct. 13, 1908. Held, that the same fire control equip- 

» See 41 MSS. Comp. Dec, 927, May 23, 1907. See also XIV Comp. Dec, 912; 
XVI id., 70. 



MLITIA IX A 2 a. 727 

ment that is issued by the Signal Corps to field batteries of the Reg- 
ular Army may be furnished without cost to States by the Signal 
Corps through the Ordnance Department, and the appropriation in 
faror of the Signal Corps may be reimbursed by the transfer from 
the balances remaining from the several appropriations in question. 
This permits the accounting to be made on one set of returns to the 
Ordnance Department.^ G. I4148-G, Feb. 2, 1910. 

IX A 2 a. Section 3 of the act of January 21, 1903 (32 Stat. 775), 
was amended by the act of May 27, 1908 (35 Stat. 399), so as to pro- 
vide an exception to the rule that the regularly enUsted, organized, 
and uniformed active militia in the several States and Territories 
and the District of Columbia shall be required to have on and after 
January 21, 1910, the same armament as that which is prescribed 
the Regular Army of the United States. This rule is "subject in 
time of peace to such general exceptions as may be authorized by 
the Secretary of War." Held, that under this excef)tion the Secre- 
tary of War may prescribe a ruJe of armament for Field Artillery in 
the National Guard under which if a battahon of Field Artillery has 
the complete personal equipment which fits it for active service, but 
has, due to the fact that the United States has not yet made ample 
provision for Field Artillery material, only sufficient Field Artillery 
material, including guns, caissons, etc., to fully equip one battery, 
its armament shall be held to conform to the requirement of section 
3 of the act of January 21, 1903, as amended by the act of May 27, 
1908. C. 14148-H, May 10, 1911. 

IX B 1. Section 17 of the act of January 21, 1903 (32 Stat. 778), 
brings all stores that are procured and issued to the Army by way 
of the supply departments within the operation of section 1661, R. S., 
as amended, and the act of February 12, 1887 (24 Stat. 401), in 
respect of ownership and accounting. This property must be ac- 
counted for by methods prescribed in the act of February 12, 1887, 
and June 22, 1906 (34 Stat. 449). C. I4148-B, Sept. 29, 1906. 
Held, that the only sales ^ which are thus authorized to be made to 
the militia are to States. Sales to individuals are not authorized. 
C. 14148, June 19, 1903, Oct. 26, 1907, and Jan. 22, 1908. And 
the request for the purchase of such supplies should be signed bv 
the governor of the State or by some officer representing him. C). 
14148, June 20, 1903. But if the requests are signed by the gov- 
ernor he may vest the duty of signing the receipts in an officer of 
the State Mihtia. C. I4148-F, Nov. 6, 1908. States can purchase 
pubhc documents for cash direct from the office of the superin- 
tendent of documents. Purchases can also be made under section 
17 of the act of January 21, 1903, and the amount charged to the 
allotment of the State under section 1661, R. S., but no department 
has been charged with the duty of making these sales. 0. 14148, 
June 22, 1903. Held, that a trunk locker may be sold to a State 
under the general terms of section 17 of the act of January 21, 1903. 
C. 14148-F, Apr. 24, 1909. Held, in view of the requirement of the 
act of June 6, 1906 (34 Stat. 252), that the number of horses pur- 
chased under that appropriation added to the number now on hand, 
shall be Umited to the actual needs of the mihtary service; that bat- 

^ For appropriation against which tentage is charged, see XI Comp. Dec, 356. 
2 X Comp. Dec, 165. Disposition of moneys received from sales to States. 



728 MILITIA IX C. 

tery horses can not be issued or sold to a State in the operation of 
section 17 of the act of January 21, 1903. C. UU8-C, Mar. 25, 1907. 
This prohibition apphes also to Cavalry and Artillery horses. C. 
14148-G, Nov. 8, 1909, and Apr. 3, 1911. And, also, lieU that sales 
to a State for the use of its State pohce would not be authorized 
under section 17 of the act of January 21, 1903. C. l^H^-B, Jan. 
11, 1906. 

Under the mihtia act of January 21, 1903, sales may be made to 
States at the discretion of the Secretary of War, for the use of the 
mihtia. There is no authority for sales to States and Territories for 
other purposes. Held, therefore, upon application by a governor for 
permission to purchase flags for the capitol, that such purchase 
could not be considered as for the use of the militia. C. 15286, Oct. 
6, 1903. Held,, that under authority of the act of March 3, 1905 (33 
Stat. 986), a rifle of the model used by the Army may, upon the 
request of the governor of a State, be sold by the Secretary of War, 
provided it is purchased for the use of a rifle club and is to be used 
in conformity to the regulations prescribed by the Secretary of War, 
with a view to the promotion of rifle practice among members of 
the reserve mihtia. C. HUS-B, Feb. 3, 1906. ^ 

IX C. Requests for the loan of tents, flags, and other pubhc prop- 
erty under the control of the War Department have as a rule been 
denied on the ground that the Secretary of W^ar had no authority to 
loan public property under his control unless authorized to do so by 
resolution or act of Congress.^ While there have been instances in 
which dredges and other public property used for the improvement 
of navigation have been loaned under authority of the War Depart- 
ment, the practice has been vv^ith few exceptions, in accordance with 
the view that, in the absence of authority from Congress, the Secre- 
tary of War can not legally loan personal property of the Govern- 
ment. C. 1561, July, 1895; 2265, May, 1896; UU8-E, Feb. 29, 
1908. Held that in the absence of congressional authority Govern- 
ment ambulances could not be loaned to the National Guard of a 
State for use on a practice march. C. 1561, supra. Held, that 
United States horses can not be loaned to the National Guard for 
use at an annual encampment. C. 10655, June, 1901. 

IX D. The Secretary of War has no authority to relieve a gov- 
ernor for accountability for supplies which have been receipted for 
by him, although they may have been subsequently lost, destroyed, 
or stolen. Congress alone can grant the desired relief. G. 13419, 
Nov. 20, 1902; Mar. 11, 1903. But held, that where ordnance and 
ordnance stores of the United States in custody of the governor of a 
State have been destroyed and the loss is covered by insurance, the 
insurance money may be applied by the State to the purchase, under 
authority of the act of February 24, 1897 (29 Stat. 592), of stores 
and supplies in lieu of those destroyed and be taken up and accounted 
for by the State in place of those destroyed. C. 10795, July 12, 1901 . 
Also held, however, that such incidental acquisition of property by 
renting, as becomes necessary in the establishment, construction, 
and maintenance of target ranges and shooting galleries, need not be 
annually accounted for by the governor, but instead, dropped on the 

1 Such action, for example, was taken by the War Department June 24, 1895, on a 
request for the loan of flags to be used at an encampment. 



MILITIA IX E. 729 

vouchers reporting their rent, provided the rental is approved by the 
Secretary of War. C. I4148-B, Sept. 29, 1906. Also held, that 
section 4 of the act of June 22, 1906 (34 Stat. 450), relates to all 
property in the hands of the militia not accounted for at the date of 
its approval, as to which no final settlement has been reached, and 
its operation is to provide a method of settlement in such cases. It 
extends relief for property lost, destroyed, or rendered unserviceable 
due to carelessness or neglect prior to the passage of said statute by 
providing that the money value of stores so lost or destro3'ed shall be 
charged against the allotment to the State under section 1661 R. S., 
as amended. C. I4I4S-C, Apr. IS, 1907. Also held, that it is now 
settled law that in the absence of legislation sanctioning it no execu- 
tive department or officer can dispose of personal property of the 
United States by sale or otherwise. C. 14454, Apr. 17, 1903. 

IX E. Two ambulances which had been issued to a State for the 
use of its Organized ]\Iilitia needed repair. Held, that the cost of 
such repairs constitutes a proper charge against the allotment ac- 
cruing to that State in the operation of section 1661, R. S., as 
amended by the act of June 22, 1906 (34 Stat. 449). C. I4I48-H, 
Sept. 5, 1910. 

IX F. Certain members of the National Guard of a State refused, 
upon demand, to return property which had been used by them 
wliile participating in the maneuvers on a military reservation. 
Held, tnat any legal proceeding with a view to the recovery of arms 
or other property, which had been issued to a State for the use of its 
Organized ]\Iilitia, should be instituted in the State courts, whose 
jurisdiction in the matter is original, as the custody and possession 
of the property is in the State, although the ultimate ownership of the 
arms and other property is in the United States. C 1414^~^y Oct. 
25, 1906, July 5, 1907, Mar. 23, 1908, July 27, 1909; 16107-A July 
17, 1909. 

IX G. Under section 4, act of June 22, 1906 (34 Stat. 450), clothing 
which has been in use by the National Guard of the District and 
which has been condemned may be placed in the custody of the 
trustees of the National School for Boys, for the use by the boys 
brigade which is being organized at the school, upon the receipt of a 
satisfactory undertaking by the trustees that the clothing so trans- 
ferred shall after use be destroyed. C. I4148-F, Apr. 6, 1909. In 
view of the fact that the authority of the Secretary of War over the 
property in the custody of the department is plenary, and that it is 
within his power to order another disposition of the property than 
that recommended by the inspector, held, that if he is satisfied that 
condemned clothing of the District National Guard will be used to 
relieve suffering, he may regard its transfer to the Associated Chari- 
ties as equivalent to its destruction, and may modify the action 
recommended by the inspector in such a way as to authorize the 
transfer of the condemned article to the Associated Charities for 
charitable uses. C. 25978, Dec. 20, 1909. Held, also, that a fire- 
control system damaged by fire should be acted upon by a survey- 
ing officer. C. 14148-H, 'Feb. 15, 1911. 

IX H. Section 4 of the act of June 22, 1906, provides ''That 
whenever any property furnished to any State or Territory or the 
District of Columbia, as herein before provided, has been lost or 
destroyed, or has become unserviceable or unsuitable from use in 



730 MILITIA IX I. 

service, or from any other cause, it shall be examined by a disinter- 
ested surveying officer of the Organized Militia." Held, that under 
the limitation contained in the above law, a Regular Army officer on 
duty with the Organized Militia of a State can not legally be ordered 
to act as a surveying officer on the unserviceable property. C. 
IJ1.I48-E, Feb. 5, 1908. Held, that the above provision applies also 
to a retired officer of the Regular Army who is on duty with the 
Organized MiUtia of a State. C. I4148-E, May, 1908. Held, how- 
ever, that if such retired officer on duty with the National Guard of a 
State actually holds a commission as an officer of the Organized 
Militia of the State, he may act as surveying officer under the pro- 
visions of the law above cited. C. lJi.lJi.8~G, Nov. 1 , 1909. 

IX I. The practice of accepting certificates in matters relating to 
property accountability has thus far been restricted to officers of the 
Army, and is to some extent based on the oath of office which is 
required by law to be taken by that class of public officers. Officers 
of the Organized Militia do not take that oath, and are not subject 
to the operation of the Articles of War. Held, that affidavits instead 
of certificates should be required in support of the foldings of boards 
of survey in respect to the loss of or damage to articles of public 
property which are issued to the several States for the use of their 
Organized Alihtia. C. 17099, Nov. 18 and Dec. 21, 1904; 17255, Dec. 
15, 1904- Held, that an oath to the loss of or damage to property 
can be administered only by one who has been thereto expressly 
authorized by law. C. 18026, May 18, 1905. 

IX J. The Army appropriation act of May 26, 1900 (31 Stat. 205), 
contains a proviso to the efi'ect that the Secretary of War is authorized, 
on the application of a governor, to replace quartermaster supplies, 
which the volunteers carried into the service of the United States, 
during the recent War with Spain, and which have been retained by 
the United States. Held, that the proviso applies not only to stores 
which were furnished the States or Territories under the annual 
militia appropriation, but also to supplies purchased by the States 
and Territories; and it authorizes the replacing of the property, 
article for article, but does not require that the replacing articles must 
be strictly new. C. 8417, June, 1900. 

X A 1. Section 3690, R. S., in providing that balances of appropria- 
tions for any fiscal year remaining unexpended at the end of such j^ear 
shall not be applied to the "fulfillment" of any contracts except those 
"properly incurred during that year," ^ expressly excepts "permanent 
or indefinite appropriations." The existing law (sec. 1661, R. S.) 
makes a permanent appropriation of a certain sum annually "for the 
purpose of providing arms and equipments for the militia." HcM that 
a balance of this appropriation, remaining unexpended on the last day 
(June 30) of a certain fiscal year, could legally be used for the pay- 
ment of a contractor in December following, under a contract entered 
into, in November, with the Ordnance Department for the manufac- 
ture of an arm intended to be issued to the militia. R. 31, 85, Dec, 
1870. 

X A 2. Moneys drawn from Treasury under section 14 of act of 
January 21, 1903, are to be disbursed imder direction of the governor, 
for payment, subsistence, or transportation, and are to be accounted 
for m accordance with the rule governing the disbursing officers of 

iSee Vi Comp. Dec, 815; id., 898. 



MILITIA X B. 731 

the War Department. C. I4.I48, June 10, 1903. Held, that under 
section 14 01 the act of January 21, 1903, funds can only be turned 
over to a State or Territory on a requisition made by the governor 
thereof.^ C. lJf.l48-A, Aug. 25, 1905. Held also that a payment of 
National Guard forces, by a State adjutant general, from personal 
funds does not constitute a payment under the law, or operate to 
prevent a pavment bv the disbursing officer from public funds. 
C. 14148-H, Jan. 19, 1911. 

X B. The Secretary of War is not required by the act of April 20, 
1874, to cause the accounts of the disbursing officers appointed by the 
governors of States and Territories under authority conferred by act 
of January 21, 1903, to be inspected. C. I4I48, Oct. 15, 1903. 

X C. In view of the restrictions contained in section 14, act of 
January 21, 1903, and iri the act of June 22, 1906, on the expenditure 
of money appropriated for the Organized Militia, held, that clerk hire 
for disbursmg officers does not constitute an expenditure which is 
properly chargeable to the allotment of a State under the two acts 
cited above. 0. I4I48-C, Apr., 1907. 

X D. Held, that the status of Hawaii is that of a Territory of the 
United States within the meaning of the militia act of February 12, 
1887 (24 Stat. 401), which provides that of the annual appropriation 
for the militia (act of June 6, 1900, 31 Stat. 662), such proportion 
thereof and under such regulations as the President may prescribe 
shall be apportioned to the Territories and District of (i)lumbia. 
G. 9176, Oct., 1900. 

X E. A State may, under its allotment under section 1661, R. S., 
hire horses for its National Guard and this held to include the neces- 
sary horses for mounted officers. 0. 1414^-^, Aug. 6, 1908. Held, 
that the cost of vetermaiy attention and care for such hired horses 
will constitute a charge against the allotment of the State in the 
operation of section 1661, R. S., as amended, and of section 2 of the 
act of June 22, 1906 (34 Stat. 450). Q. I4148-D, Aug. 9, 1907, 
Oct. 12, 1908, and Oct. 23, 1908. 

X F. Held, that money appropriated under section 1661, R. S., as 
amended can not be used for the payment of caretakers of United 
States property in the custody of the National Guard. G. I4I48, 
Jan. 18, 1912. 

XI A. The adjutant general of a State is clearly an officer of the 
Organized Militia. Held, that if he takes part in actual field or 
camp service for instruction by order of the governor, he is entitled 
to pay under section 14 of the act of January 21, 1903, and, also, if, 
after having been properly detailed in appropriate orders by the 
Secretary of War, he participates in joint maneuvers with the Regu- 
lar Army as is contemplated in section 15 of the act of Januarv 21, 
1903, he is entitled to pay.^ C. I4148, Aug. 4, 1903. 

' See XIII Comp. Dec, 463. Disbursing officers authorized to disburse funds for 
promotion of target practice under sec. 2 of the act of June 22, 1906 (34 Stat. 449). 

- See XV Comp. Dec, 120. The method of computing pay prescribed in the act 
of June 30, 1906 (34 Stat., 763), is not applicable to the militia. A militia officer on 
duty at an encampment is not entitled to pay if not mustered by an officer of the 
Regular Army. (See XV Comp. Dec, 414.) Militia participating in joint encamp- 
ments with the Regular Army should be paid from the appropriation ' ' Encampments 
and maneuvers, Organized Militia." (XV Comp. Dec, 514 and 587.) Accounting 
officers of the United States have no jurisdiction over claims arising under sec. 14, act 
of Jan. 21, 1903. (See X Comp. Dec, 183, 392 and 635.) 



732 MILITIA XI B. 

XI B. Under section 14 of the act of January 21, 1903 (32 Stat. 
776), the governor of a State has discretion to order the heads of 
staff departments to take part in a camp of instruction and to per- 
form certain duties in connection therewith. Held, that these officers 
while so engaged are entitled to pay as provided in the above section. 
C. 14148 B, Sept. 11 and 17, 1906. 

XI C. Inquiry was made as to whether or not all officers on the 
governor's staff would be entitled to be paid from the allotted Gov- 
ernment funds while in attendance at an authorized encampment. 
Held, that wlien one or more organizations of tlie Organized Militia 
of a State is or are authorized by the Secretary of War to participate 
in an encampmnet of the Regular Army under section 15 of the act 
of January 21, 1903 (32 Stat. 776), no officers, other than those 
belonging to the organizations which have b(3en authorized to partici- 
pate, can be paid by the United States for services rendered during 
the encampment.! C. I4148 B, Sept. 11, 1906. 

XI D. If a disbursing officer be selected from among those who in 
pursuance of the orders of the governor from a part of the forces 
which engage in camp or field service for instruction, Jield, that he 
becomes entitled to pay under section 14 of the act of January 21, 
1903; otherwise not. C. I4148, Oct. 1903. Held, that he is also 
entitled to pay for not to exceed 10 days while necessarily engaged 
after his return from camp in preparing his accounts, but a dis- 
bursing officer who is not a member of the militia and actively par- 
ticipating in the encampment is not entitled to pay for his services.^ 
C. 14148, Oct. 20, 1903, and Sept. 9, 1904. 

XI E. An assistant surgeon of a State National Guard has the 
rank of captain either by an appointment to the office of assistant 
surgeon with that rank or by advancement thereto by operation of 
law after five years' service in the grade of ffi:-st lieutenant. Held, 
diat he is entitled while engaged in the service specified in sections 
14 or 15 of the act of January 21, 1903 (32 Stat., 775), to the pay of 
the rank of captain.^^ C. 16975, Oct. 5, 1904; I4148 F,Apr. 15, 1909. 

XI F. A disbursing officer can not legally pay enlisted men at a 
different rate of pay from that allowed enhsted men of the Regular 
Army for the purpose of covering the hire of horses. C. I4I48-B, 
Aug. 23, 1906. Held, that if an officer of the Organized Militia below 
the grade of major, whose duty requires him to be mounted, provides 
himself with a mount, he is entitled to the same extra pay for the 
same period of time as an officer of the Regular Army would be entitled 
to under the act of May 11, 1908 (35 Stat. 108). Also heU, that if the 
State furnishes an officer with a mount from horses which it has hired 
under its allotment under section 1661, R. S., for the use of its National 

* See X Comp. Dec, 360. An officer temporai-ily assigned to duty with an organ- 
ization which participates is entitled to pay. See XIV id., 665. Participating in 
a review of the Organized Militia with the governor during the annual encampment 
is not actual field or camp service for instruction. 

2 See XVI Comp. Dec, 52, and XIV Comp. Dec, 418, for pay of disbursing oflBcer 
who participates an an encampment. Not entitled to pay for participating in rifle 
practice. See X Comp. Dec, 405. Disbursing officer not entitled to reimbursement 
for expenses connected with furnishing his bond. 

8 XI Comp. Dec, 345. 



MILITIA XI G. 733 

Guard, he would not be entitled to extra pay because of being 
mounted.^ C. I4I48-E, June 29, 1908, and Aug. 6, 1908. Held, 
that there is no provision of law autliorizing reimbursement in full 
of the amounts claimed by the militia officers who have provided 
their mounts at their o^vn expense. C. l^HS-F, Aug. 6, 1908. 

XI G. An officer of the National Guard is not entitled to increased 
pay for length of service, when the service has been rendered as a 
commissioned officer of the Organized IMihtia of a State or Territory, 
or of the District of Columbia.^ C. 16975, Oct., 1904. Also held that 
officers of the Organized ]\iilitia are not entitled to longevity pay 
because of previous service in the Regular A^m3^^ C. 1414^~F, July, 
1908. 

XI H. An officer was ordered, in a la\\^ul order, by the governor, 
to a camp ground with a view to maldng preparation for the recep- 
tion of troops who were there to go into camp. He submitted his 
accounts wdth the muster and pay rolls, as required by the mihtia 
regulations. Held, that the charge can be paid from funds allotted 
under sec. 1661, R. S., as amended. C. I4148-F, June 19, 1909. 

XI I. An officer of the National Guard of a State served as a mem- 
ber of a board to assess damages, as a result of joint maneuvers. 
Held, that he was entitled to the pay and allowances of his rank while 
the organization to which he belonged remained on duty, and after 
its return to its home station, until the board completed its labors. 
The compensation to be paid from the Army appropriation act of 
June 12, 1906 (34 Stat. 252),'' Barracks and quarters "—item "For 
the hire of buildings and grounds for summer cantonments." C. 
20112, July 25 and 31, 1906. 

XI K. Upon request for an opinion as to whether an officer on 
duty at encampment is entitled to pa}^ while on leave under proper 
orders, during a portion of the period while encampment is in progress, 
lield, that he is not entitled to pav during the time specified. *C. 
14148-A, Aug. 25, 1905, and Oct. 14, 1907. 

XI L. If an officer of the retired list of the militia of a State be 
placed on active duty in connection wdth camps of instruction, 
small-arms competition, etc., without being recommissioned on the 
active list in the Organized Militia, held, that he will not be entitled 
to pay under section 15 of the act of Januarv 21, 1903. C. 1414^-^, 
May 29, 1908. 

XI M. Upon consideration of the question of whether or not an 
officer of the State militia, who is more than 64 years of age, can 
draw pay for his services it was held, that the Congress has expressed 
its legislative will to the effect that an officer ceases to be able, 
after ne is 64 years of age, to encounter the hardships and vicissi- 
tudes of active military service in the field. Also held, that the depart- 
ment is not obliged to compensate persons who are not able-bodied, 
and who are disqualified by reason of age or other physical disa- 
bility, from rendering efficient service in connection with the admin- 
istration of camps of instruction or maneuvers. Also held, that 

» XV Comp. Dec, 15. 

2XIIComp. Dec, 522. 

'X Comp. Dec, 18. Longevity pay not allowed. 



734 MILITIA XI N. 

the War Departjnent may describe classes of disabled persons to 
whom payment shall not be made out of funds accrumg to the 
States m the operation of section 1661, R. S., or out of funds pro- 
vided by Congress to defray expenses of detachments of the Organ- 
ized Militia, which, pursuant to the invitation of the department, 
takepart in joint camps of instruction and maneuvers.^ C. HlJf.8-G, 
Apr. 11, 1910; U911, Mar. 7, 1911. 

XI N. The act of June 22, 1906 (34 Stat. 449), makes provision 
in favor of the mUitia for the promotion of rifle practice. Held, 
that the appropriation covers the pay of men as "pitmen," "mark- 
ers," "caretakers," etc.,^ for work done on ranges built and hereto- 
fore maintained by a State on leased ground with money appro- 
priated from the treasury of the State. C. 20168, Aug. 8, 1906. 
A State furnished markers, pitmen, etc., for the conipetition at 
Camp Perry in 1907, and submitted a request to the War Depart- 
ment for reimbursement. Held, that the States which sent teams 
to Camp Perry could contribute from their apportionment under 
section 1661, R. S., as amended, and that after all had done so, 
the remainder would represent the amount properly chargeable to 
the United States, which can be paid out of tne Army appropriation. 
a 141 48-D, Dec. 5, 1907. 

XI O. A regiment of Organized Militia participated in joint maneu- 
vers at Chickamauga Park, Ga., and was mustered for 14 days as 
time consumed in going from and returning to its regimental head- 
quarters. The Second Battalion consumed four days in addition, as 
its home station is different from the regimental headquarters. Held, 
that if the members of the Second Battalion were mustered for pay 
by a Regular officer for the period of time consumed in returning 
to their home station, such muster would constitute a basis for 
payment for the four days' travel.^ C. I4I48-H, Sept. 6, 1910. 

jSI p. a member of a State rifle team,* which team had partici- 
pated in the national match, was taken sick while enroute home, 
and was delayed in hospital for a period of time. Held, that he 
was not entitled to pay during the time of his illness and up to and 
including the date of his arrival at his home, as the law limits the 
right to pay, etc., to the period of time in which the militia are en- 
gaged in "actual field or camp service of instruction." C. 1414^- 
D, Oct. 14, 1907. 

XI Q. A soldier of the Organized Militia of a State participated 
in a camp for instruction under section 14 of the act of January 21, 
1903, and died before signing the roll. No demand has been made 
by the legal representatives of the estate for the pay. Held, that the 
act of June 30, 1906 (34 Stat. 750), vests no jurisdiction in the dis- 
bursing officer of the Army to make payment to the heirs of such 
decedent.5 C. I4I48-B, Oct. 8, 1906. 

» See 22 Op. Atty. Gen., 176. 

2 See XIV Comp. Dec, 631. Employment of members of militia as civilians at 
target ranges and encampments. 

3 See act of June 12, 1906 (34 Stat. 249). 

* Pay at State camp of rifle practice and at national match (X Comp. Dec, 477). 
» X Comp. Dec, 635. 



MILITIA XII A. 736 

XII A. The act of March 2, 1907 (34 Stat. 1175)/ directs that 
rifles of new types and ammunition therefor, when adopted for the 
Regular Army, shall be furnished to the Organized Militia. Held, 
that this statute is mandatory in terms, and vests no discretion in 
the Secretary of War in respect to the several incidents of issue and 
exchange which are therein directed to be made, C. 14455, Apr., 
1908. Held, that the exchange of ammunition suited to the old type 
rifle must be at the expense of the United States, in conformity to 
the requirements of section 13 of the act of January 21, 1903 (32 
Stat. 777). C. 14455, Feh. and Apr., 1908. Held, that section 13 
of the act of January 21, 1903, has been already executed and for 
that reason has become functus officio in that it is not sufficient 
authority to warrant the department in rearming the mihtia without 
cost to the appropriation under section 1661, R. S. C. 144^5, Oct., 
1906. Held, that the number of magazine arms to be issued to a 
particular State or Territory under section 13 of the act of January 
21, 1903, will be determined by the strength of its Organized Mihtia 
as authorized by the act of January 21, 1903, upon which date the 
mihtia law became effective. C. 1414^-1 July 13, 1903. Held, that 
the expense of issue or exchange of small arms and equipment under 
section 13 of the act of January 21, 1903, is chargeable against the 
appropriation carried under that section, but it was not contemplated 
that the value of the articles issued or exchanged should be so charged. 
C. 14455, Apr. 28, 1903, and Sept. 27, 1905. Held, that under section 
13 of the act of Januarj^ 21, 1903, and the act of March 2, 1907, the 
Secretary of War is required to receive from a State ammunition 
which had been purchased by the State from State funds, and 
which was fitted to a rifle of an old model, which had been exchanged 
under authority of the act of March 2, 1907, and to issue in exchange 
therefor, round for round, ammunition suitable for the new type 
of small arm which had been adopted for the Regular Army and 
issued to the State. C. 14455, Apr. 30, 1908. Held, that the 
issue of small arms to a military company which is not a part of the 
Organized Militia of the State is not authorized under section 13 of 
the act of January 21 , 1903. C. I4148-A, Dec. 18, 1905. Held, that 
the expenses of hauling the arms to be issued to a State under section 
13 of the act of January 21, 1905, and of hauling those to be returned 
to the United States, between the railway depot or nearest steam- 
boat dock and the State storehouse, are to be paid by the United 
States from the appropriations therein made, and the arms to be 
returned to the United States are to be accepted by the United States 
where they are. C. I4148-E, Mar. 24, and Apr. 7, 1908. 

' The act of Mar. 2, 1907, provides that: "It shall be the duty of the Secretary of 
War, whenever a new type of small arm shall have been adopted for the use of the 
Regular Army, and when a sufficient quantity of such arms shall have been manu- 
factured to constitute, in his discretion, an adequate reserve for the armament of any 
Regular or Volunteer forces that it may be found necessary to raise in case of war, 
to cause the Organized Militia of the United States to be furnished with small arms 
of the type so adopted, with bayonets and the necessary accouterments and equip- 
ments, mcludtng ammunition therefor: Provided, That such issues shall be made in 
the manner provided in section thirteen of the act approved January twenty-first, 
nineteen hundred and three, and entitled 'An act to promote the efficiency of the 
militia, and for other purposes. ' " (34 Stat. 1174.) 



'' I 



736 MILITIA XII B. 

The act of March 2, 1903 (32 Stat. 942), appropriates $2,000,000 
for the purpose of furnishmg the necessary articles requisite to fully 
arm, equip, and supply the Organized Militia of the several States, 
Territories, and the District of Columbia, with the same armament 
and equipment as are now prescribed for the Regular Army. Held, 
that as $2,000,000 is not sufficient for that purpose, a method of dis- 
tribution similar to an allotment will have to he resorted to, and in 
making the portion which can be assigned, the number of Organized 
Mihtia in existence on January 21, 1903, will determine the proportion 
to which each State and Territory is entitled for the use of its Organ- 
ized Militia. C. 1U55, June 8, 1903. 

XII B. Upon request for an opinion as to whether or not ammu- 
nition can be issued under section 21 of the act of January 21, 1908 
(32 Stat. 779), to troops engaged in maneuvers, held, that instruction 
in target practice is an essential condition to the free issue of ammu- 
nition to the national guard under section 21 of the act of January 
21, 1903, and that therefore it can not be issued free to be fired away 
in maneuvers, although some incidental instruction in small-arms 
firing may be imparted. C. 14791, Nov. 2G, 1903, _ June 1^, 1904, and 
Aug. 10, 1907. Held, that small-arms' ammunition can not be sup- 
plied to the Organized Militia for maneuvers from the appropriation 
of $2,000,000 carried by the current Army appropriation act of March 
2, 1903 (32 Stat. 942), for the purpose of arming, equipping, and 
supplying the Organized Militia with the same armanent and equip- 
ment as are now provided for the Regular Army and that the words 
"armament and equipment'' in that act should be construed as in- 
cluding ammunition. C. 14791, Aug. IS, and Nov. 21, 1903. Also, 
lield, that the cost of ammunition furnished the Organized Militia for 
joint maneuvers will constitute a charge against any amount standing 
to the credit of the State under section 1661 R. S. C. 14791, Nov. 
20, 1903, and June 14, 1904. Upon a request from a State for a sup- 

f)ly of seacoast artillery ammunition for the use of the Heavy Artil- 
ery during its approaching term of duty of instruction in one of the 
forts in New York Harbor, held, that funds made available in the for- 
tification bill, when not set apart for a purpose inconsistent with such 
use, may lawfully be expended for that purpose. The cost of such 
ammunition may also be accounted for by charging it against the 
State's allotment under section 1661 R. S., with the governor's con- 
sent as expressed in a proper requisition therefor. C. 14791, June 
11, 1903. 

XIII A. The Constitution gives to Congress the power ''to provide 
for organizing, arming, and disciplining the militia," but vests in that 
body no authority to prescribe its uniform, which authority was left 
to the States. Held, however, that it is withm the power of Congress 
in maldng gratuitous issues of uniform clothing to the militia to 
impose conditions in connection with such issues and to provide that 
any distinctive marks or designations which are used on the uniforms 
of the Regular Army, such as the coat of arms of the United States, 
shall not be used, or shall appear in a modified form on such uniforms 
as may be worn by the Organized Mihtia to whom they are issued. 
Such power, however, pertains to Congress, and without legislative 
authority can not be exercised by the Executive. 0. 14368, Mar. 
and June, 1903, and Aug., 1906; 14148-F, Oct. 13, 1908. 



MILITIA XIII B. 737 

XIII B. Campaign badges constitute stores and supplies which are 
supplied to the Army within the meaning of section 17 of the act of 
January 21, 1903 (32 Stat. 778). Held, that as such, they may be 
issued to the governors of the several States for the use of their 
Organized Militia as part of the uniform. C. I4148-F, Oct. 13, 1908; 
23839, Oct. 26, 1908, and Dec. 2, 1908. Held, that the medals fur- 
nished to members of the military establishment for proficiency in 
small-arms practice are procured out of the funds appropriated for 
the Kegular Army and can not be furnished to a cadet battalion at 
a State university which was not a part of the Organized Militia of 
the State. C. UU8-D, Dec. 28, 1907. 

XIV A. Penalty envelopes can not lawfully be supplied to State 
or Territorial authorities for discretionary use, but held, that if official 
information is called for by the War Department, respecting the 
militia, their use would be lawful in carrying the reply. C. 6419, 
May, 1899; 12272, Mar., 1902. HeU,^ that as the adjutants general 
of the different States in 1898 were aiding the War Department in 
raising and recruiting the volunteer branch of the United States 
Army, they were entitled to use War Department penalty envelopes 
in that work, being personally liable criminally for any improper use 
made of such envelopes. C. 4610, July, 1898; 6173, Apr., 1899. 
Held, that the adjutants general of the States, Territories, and 
the District of Columbia are entitled to use penalty envelopes in 
making the reports and returns to the Secretary of War required by 
section 12 of the militia act of January 21, 1903 (32 Stat. 776), and 
in the correspondence regarding them; but that as the militia remains 
State militia, and as, with certain exceptions, the officers thereof are 
not ''officers of the United States Government," they would not be 
entitled to use penalty envelopes in correspondence relating to the 
organization and equipment of the militia, as such correspondence 
can not be considered as ''relating exclusively to the public business 
of the Government." ^ C. 14192, Feb. 26 and July 28, 1903; 12272, 
Mar. 22, 1902; 15183, Aug. 31, 1903; 17336, Jan. 3, 1905. But 
lield, that an adjutant general would not be entitled to a more 
extensive use of the penalty envelope than is indicated above. 
And lield, that he would not be entitled to use penalty envelopes in 
correspondence with officere of the National Guard, as neither he 
nor they are "officers of the United States Government" within the 
meaning of the act of July 5, 1884 (23 Stat. 158). C. 14192, July, 
1903. Held, that in his capacity as agent of the Quartermaster's 
Department, a State quartermaster general may use penalty envelopes 
in his official correspondence. C. I4148-F, July, 1908. Held, that 
a quartermaster general of a State is authorized to use penalty 
envelopes for correspondence with officers of the National Guard of 
the State, and with the chief quartermaster of the department on 
business pertaining strictly to transportation accounts in connection 
with transportation of the National Guard of the State to and from 
the camp at Chickamauga Park, where it participated in maneuvers 
with the Kegular Army. C. 14192, Nov., 1906. Held, that State 
disbursing officers may use penalty envelopes for their correspond- 

» Sec. 3 of the act of July 5, 1884 (23 Stat. 158). See also act of Mar. 3, 1877 (19 
Stat. 355), and Cir. 1, A. G. O., Jan. 11, 1892. 

93673°— 17 47 



738 MILITIA XIV B. 

ence with the War Department on official business. C. 14H8, Dec, 
1903; 15183, Aug., 1903. A disbursing officer may also use penalty 
envelopes in making payments provided for on rolls which were trans- 
mitted to the War Department for approval. But lield, that he is 
not authorized to use free registration for such letters, or for letters 
sent to the War Department. C. 17336, Jan., 1905.^ HeU, that 
penalty envelopes could not be furnished to a bank which desired to 
use them for the purpose of inclosing blank check books when they 
might be ordered by a State disbursing officer. C. 6542, June, 1899. 
Held, that each person using the penalty envelope must decide for 
himself his right to do so, having in mind his criminal liability for a 
misuse thereof. C. 7351, Nov., 1899. 

The militia of the District of Columbia is not placed under the con- 
trol of the District government. It is exclusively under the control 
of the National Government. The President commissions all its 
officers and is its Commander in Chief. If the officers of the District 
Militia are, therefore, officers of the United States, and if official 
matters relating to it are matters relating exclusively to the busi- 
ness of the Government,* lield, that there can be no objection 
to the use of penalty envelopes in the transaction of its busi- 
ness. These, however, are matters which the Secretary of War 
is without authority to decide, except to the extent of de- 
termining whether or not penalty envelopes shall be issued on 
requisition therefor. Questions relating to their use are for the 
consideration of the Post Office Department in the execution of the 
postal laws, and, finally, for the courts, in prosecutions instituted 
for violations of those laws. It is clear, however, that penalty 
envelopes may be issued for making the returns required by section 
12 of the militia act of January 21, 1903 (32 Stat. 776). Recom- 
mended, therefore, that penalty envelopes be furnished without 
deciding the question as to the scope of the authority for their use. 
a 12272, Mar. 22, 1902; 14192, Feb. 26 and July 28, 1903; 15183, 
Aug. 31, 1903; 17336, Jan. 3, 1905. 

XIV B. Telegrams were sent by militia officers to the War Depart- 
ment. Held, that the cost thereof should be paid from the allotment 
to the State from section 1661, R. S., and not from appropriation by 
Congress for carrying on the business of the General Government. 
C. 14148, Nov. 7, 1903. 

XIV C. The disbursing officer of a State National Guard commu- 
nicated direct with the Secretary of War on matters pertaining to 
his duties as an officer of the National Guard of the State. Held, 
that such correspondence of a disbursing officer mth the War 
Department should be through the adjutant general of the State, as 
required by Circular No. 62, series 1906, War Department. C. 
14148-D, Aug., 1907. 

XV. The commanding general of a Department, during the period 
of his exclusive occupation of a State maneuver camp ground, is 
barred by the act of February 2, 1901 (31 Stat. 758), from permitting 
the sale of any intoxicating liquors thereon, and may protect his 
exclusive occupation of said camp site b}^ ejecting any persons 
coming thereon and attempting to engage in such sales; but held, 
that he should not interfere with any of the canteens established 

1 See acts of Mar. 3, 1877, and July 5, 1884. 



MILITIA XVI A, 739 

and maintained for the sale of "spirituous liquors, wine, ale, or 
beer" under permission of the autJiorities of the State, and upon 
the premises occupied by National Guard organizations of that State 
as sites for their camps, during the period of joint encampment. 
C. 19983, June^ 29, 1906. 

XVI A. In view of the legislation embodied in the act of March. 1, 
1889 (25 Stat., 772), none of which is inconsistent or in conflict with 
the act of January 21, 1903 (32 Stat. 775), it was held; (1) that the 
active militia of the District of Columbia, otherwise Ioioavti as the 
National Guard of the District of Columbia, constitutes the "Organ- 
ized Militia" of the District wdthin the meaning of section 3 of the 
act of January 21, 1903; (2) that the brigadier general commanding 
and the brigade staff should be commissioned as officers of the 
"Militia of the District of Columbia," in conformity to the require- 
ments of sections 7 and 8 of the act of March 1, 1889 (25 Stat. 773); 
and (3) that the officers of the organizations of the active mUitia 
"should be commissioned as officers of the National Guard of the 
District of ColumJ3ia," in conformity to the requirements of section 
10 of the same enactment. C. lJf.9Jf6, July, 1903. 

XVI B. By section 18 of the act of March 1, 1889 (25 Stat. 774), 
the commanding general of the militia of the District of Columbia is 
authorized to disband any company of the National Guard or con- 
solidate it with any other company in a case where, for a period of 
not less than 90 days, it shall have contained less than the minimum 
number of enlisted men prescribed by the act, or, upon a duly ordered 
inspection, shall be found to have fallen below a proper standard of 
efficiency, and to grant honorable discharges to the supernumerary 
officers and noncommissioned officers produced by such consolidation. 
C. 18032, May, 1905. But leU that the authority thus conferred 
does not extend to the Naval Militia of the District of Columbia, 
estabHshed by the act of May 11, 1898 (30 Stat. 404). C. 19218, 
Feb. 1906. The commanding general. National Guard, District of 
Columbia, disbanded a regiment of the National Guard of the Dis- 
trict and issued an honorable discharge to the colonel of the First 
Regiment. Held, that his action was legal and recommendation 
made that it be sanctioned by the Secretary of War. C. 18032, 
May 26, 1905. 

XVI C. Section 20 of the act of February 18, 1909 (35 Stat. 631), 
provides, inter alia, for the retirement of commissioned officers of 
the District of Columbia National Guard for physical disability. 
Held, that in the absence of a requirement of statute that the board 
shall be appointed by the President or Secretary of War, it is ^^dthin 
the authority of the commanding general of the District National 
Guard to appoint the medical board provided for in that section. 
C. 19789, Apr. 12, 1909. 

XVI D. Section 11 of the act of February 18, 1909 (35 Stat. 629), 
vests considerable legislative power in the President of the United 
States. In the exercise of that power he issued regulations for the 
National Guard of the District of Columbia. Held, that the com- 
position of the medical department of the National Guard of the 
District is fixed in paragraph 8 of those regulations. Also, Tield, that 
an officer holding a commission in one department or organization of 
the militia or National Guard may be commissioned in another with 



740 MILITIA XVI E. 

the same grade and date of rank now held under section 76 of the 
act of February 18, 1909 (35 Stat. 636). C. 19789, July, 1909. A 
captain of a company of the District of Columbia National Guard 
resigned his commission on November 15, 1899, and the same date 
was commissioned a captain and inspector of rifle practice, the duties 
of which he entered upon at once; but he did not accept the com- 
mission as inspector of rifle practice until December 28, 1899. Held, 
that his service may be regarded as continuous within the meaning 
of the clauses of the act of February 18, 1909, which regulates the 
retirement of officers in the National Guard of tne District of Colum- 
bia. C. 19789, July and Aug., 1909, and July, 1910. 

XVI E. Section 49 of the act of March 1, 1889 (25 Stat. 779), pro- 
vides that all officers and employees of the United States and of the 
District of Columbia who are members of the National Guard shaU be 
entitled to leave of absence from their respective duties, without loss 
of pay or time, on all days of any parade or encampment ordered or 
authorized under the provisions of this act.^ Held, that the above 
section (49) is limited to the National Guard of the District of Colum- 
bia. G. 14873, June 27, 1903. Held, that a niessenger in the Record 
and Pension Office, who, as a member of the District National Guard, 
performed one day of duty on the rifle range, pursuant to proper 
orders, was not entitled to pay for that day as a messenger, as he was 
not engaged in actual parade proper, or in ''encampment." ^ G. 2694, 
Oct. 29, 1896; 7242, Nov. 3, 1899;^ 7418, Dec. I4, 1899. Upon request 
by a clerk in the Record and Pension Office for a leave of absence with- 
out pay from date of muster in as major ot volunteers to date of dis- 
charge from such service, it was Tield, that a clerk who is a member of 
the National Guard of the District of Columbia can not be given an 
indefinite leave of absence in order to accept a volunteer commission. 
G. 4129, May 16, 1898. The act of July 1, 1902 (32 Stat. 615), 
declared that the act of March 1, 1889, shall be construed as covering 
all days of service wliich the National Guard or any portion thereof 
may be ordered to perform by the commanding general. District of 
Columbia, as leave of absence from duty. Held, that the act was not 
retroactive. G. 13650, Nov. 29, 1902. If District troops are paid 
out of funds obtained under section 14 of the act of January 21, 1903 
(32 Stat. 777), they are not entitled for the same period to the pay 
provided in the District appropriation bill. Held, that as Govern- 
ment employees receive their pay without deduction during the period 
of the encampment under section 49 of the act of March 1, 1889 (25 
Stat. 779), they are not entitled to receive pay under section 14 of the 
act of January 21, 1903. C. I4I48, July I4, 1903. Held, that the 
act of January 21, 1903 (32 Stat. 775), did not repeal section 49 of the 
act of March 1, 1889, or extend its operation to the National Guard 
of the States and Territories. G. 14873, June 7, 1904. Held, that 
the absence of employees in the Commissary Department, in order to 
attend rifle and revolver matches, which were oidered by the com- 
manding general of the National Guard of the District of Columbia, 
should not be charged against any time due them in the operation of 
the laws granting leaves of absence, and that there should be no re- 
duction of pay for absence while so employed. G. 13650, Oct. 9, 1909. 

* An inspection not a parade, etc., VI Comp. Dec, 836. 
2 20 Op. Atty. Gen., 669. 



MILITIA XVI P. 741 

XVI F. The act of March 1, 1889 (25 Stat. 772), provides that the 
uniform of the National Guard of the District of Columbia shall be 
the same as prescribed and furnished to the Army of the United 
States. Held, that as members of the Organized Militia of the Dis- 
trict of Columbia, officers would be entitled to receive campaign 
badges under the same conditions as regulate their distribution to 
officers of the Army, as the campaign badge is part of the Uniform. 
C. 17243, Dec, 1907. Held, that the above opinion had apphcation 
to such members of the National Guard as are now in service. G. 
17243, Jan., 1908. Held, that the badges for enlisted men may law- 
fully be included in issues, but the badges for commissioned officers 
should be obtained by purchase. G. 172^3, May 23, 1908. Held, 
that the badge can not be withheld from an enlisted man of the 
National Guard of the District of Columbia, who had served honor- 
ably during the Philippine campaign as an enlisted man of the Regu- 
lar Army. G. 17243, Mar. 29, 1910. _ Held, that the commandmg 
general of the National Guard of the District of- Columbia is compe- 
tent to determine m what case an officer has rendered service in cam- 
paign as a militia officer which is of a character to entitle him to wear 
the distinctive campaign badge. G. 17243, Apr., 1909. 

XVI. G. An officer of the National Guard of the District of Columbia* 
later became an officer of the United States Volunteers. He had 
failed to accout for certain United States property for which he was 
alleged to be accountable as an officer of the District National Guard. 
The commanding general of the District National Guard recommended 
stoppage of his pay as a volunteer officer to make good his failure to 
account for public property. The Secretary of War suspended further 
payment of his volunteer pay pending prompt action against him by 
the commanding general of the District National Guard, under the 
provisions of the militia act of March 1, 1889 (25 Stat. 775), particu- 
larly section 33. Held, that if a judgment in any case is obtained 
which can not be satisfied, report thereof should be promptly made to 
the Secretary of War for his action in the premises, and that in the 
meantime the commanding general of the District Militia must con- 
tinue solely responsible to the United States for all United States 
property in the possession of such militia unless regularly relieved 
from such responsibihty. G. 10261, Aug. 9, 1901; 11559, Nov., 1901. 
Held, that if under the act of March 1, 1889, the officer had any prop- 
erty within the District, the District Militia authorities could proceed 
against it, and if he had none within the jurisdiction the action could 
abide his return; and in any event, as he denied having received the 
property, the War Department could not on such a showing grant the 
commanding general of the District Militia permission to drop the 
United States property from his returns. G. 11559, Feb. 28, 1902. 

XVI. H. As the system of property accountability in the National 
Guard of the District of Columbia is, by the act of March 1, 1889 
(25 Stat. 774), as amended by the act of February 18, 1909 (35 Stat. 
629), closely assimilated to that prevailing in the Regular Army, it 
would seem that the same, or similar rules of evidence, should apply 
in determining questions of property responsibility, and that the rules 
so apphed should differ from and require higher standards of per- 
formance than are estabUshed by law in the States at large. Held, 
that where officers of the National Guard of the District are required to 



742 MILITIA XVI I 1. 

give testimony concerning questions of property accountability they 
may lawfully be permitted to give such testimony in the form of cer- 
tificates similar in form and character to those required of officers of 
the Regular Army in similar circumstances. C. 17099, July 28, 1910. 

XVI. I 1. The act of March 1, 1889 (25 Stat. 772), provides for the 
organization of the Militia of the District of Columbia. Held, that 
no subsequent legislation annuls, affects, or invalidates the require- 
ment of section 31 of that act, which regulates the armament, cloth- 
ing, and equipment, or of section 57, which, during the annual 
encampment or when ordered on duty to aid the civil authorities, 
regulates the subsistence of the National Guard of the District. C. 
16354, ^ay 26, 1904. Held, that forage and fuel can be furnished 
the National Guard of the District of Columbia under section 31 of 
the above act while in camp. Also held, that " consumable property" 
continues to be the property of the United States until it is actually 
.consumed by its use.^ C. 3239, May 28, 1897. Held, that Dyer's 
Handbook of Artillery may, under the above law, be issued to the 
National Guard of the District, as it would come under " other military 
stores as may be necessary for the proper training and instruction of 
the force." C. 17665, Mar. 13, 1905. Held, that under section 55 
.of the above act such blank forms as are needed for the administration 
of the Natjonal Guard of the District may be furnished. C. 16354, 
Nov. 12, 1907. Held, that section 14 of the act of January 21, 1903 
(32 Stat. 777), does not conflict with section 57 of the above act, and 
that section 17 of the act of January 21, 1903, has no connection with 
section 57 of the above act, but simply operates to extend the scope 
of section 1661, R. S. C. I4148, July 3, 1903. 

XVI I 2. The commanding general. National Guard of the Dis- 
trict of (Columbia, submitted a requisition for certain clothing, camp 
and garrison equipage for the use of the Organized Militia under his 
command. Held, that the Organized Militia of the District of 
Columbia is entitled to share in the benefits conferred by what is 
known as the ''two million dollar" clause of the act of March 2, 1903 
(32 Stat. 942), and the cost of supplies can be charged against the 
District's allotment under that act. C. 16354, May 26 and July 19, 
1904, and May 7, 1908. 

Xyi I 3. War Department orders prescribe the kinds of type- 
writing machines that shall be purchased during the fiscal year 1901, 
''for the use of the Army." Held, that that does not prohibit the 
Quartermaster's Department from issuing and charging to the 
Militia of the District a typewriting machine now on hand, which is 
of a different make. C. 8580, July, 1900. Held, that typewriting 
machines may be issued to the National Guard of the District to the 
same extent that they are issued to corresponding organizations of the 
Regular Army by the Quartermaster's Department and their cost will 
constitute a charge against the allotment to the District under sec- 
tion 1661, R. S., as amended by the act of June 6, 1900 (31 Stat. 662). 
0. 14663, May 16, 1903. 

XVI 1 4. The commanding general, District National Guard, 
requested that furniture be furnished and charged against the appro- 
priation of June 6, 1900, for arming and equipping the militia. Held, 

1 See III Comp. Dec, 632. 



MILITIA XVI I 5. T43 

that the cost of the articles requested can not be charged to the 
appropriation made by the act of June 6, 1900 (31 Stat. 662), but 
must De met by the special annual appropriation which includes an 
item for "furniture." C. 10182, Apr., 1901. 

XVI I 5. The marshal of a G. A. R. parade requested the Secre- 
tary of War to authorize the commanding general, District National 
Guard, to loan 12 sets of horse equipments for the use of his staff. 
Held, that the Secretaiy of War has no authority to direct the com- 
manding general, District Militia, to loan property of the United 
States in his custody. C. 13385, Sept. 30, 1902. 

XVI I 6. Request for the loan of a two-mule team with wagon 
was made by the National Guard of the District of Columbia for use 
in connection with rifle practice. Held, that while the loan might be 
authorized as being within the spirit of the act of March 1, 1889 (25 
Stat. 779), it becomes of doubtful propriety when considered in con- 
nection with the restrictive requirement oi the act of appropriation 
for the support of the Army, and in view of the express provision for 
incidental expenses of the National Guard of the District of Columbia 
which is made in the act of appropriation for the support of the 
District government. C. 18113, June 6, 1905. 

XVI J. A sergeant in a company of the District National Guard 
was elected to the position of second lieutenant, examined as the 
law requires and found competent and otherwise qualified, which 
fact was duly certified to the commanding general. He was then 
reduced to the ranks and then subsequently honorably discharged by 
order of the commanding general, "in the interests of the service ' 
under section 28 of the act of March 1, 1889, from which action he 
appealed. Held, that there is no appeal from his discharge by the 
commanding general of the District Militia, and that it can not be 
recalled or set aside. C. 3398, Aug. 3, 1897. An enlisted man was 
dishonorably discharged from the District Militia in pursuance of 
the approved sentence of a court-martial. He requested that an 
honoraole discharge be substituted for the dishonorable one. Held, 
that the sentence is executed and relief can not be afforded. C. 
10715, June 24, 1901. 

XVII A. Section 23 of the act of January 21, 1903 (32 Stat. 779), 
provides that certain examinations he held of persons having spe- 
cific quahfications. One of the qualifications is that the candidate 
"shall have served in the Regular Army of the United States, in 
any of the volunteer forces of the United States, or in the Organized 
Militia of any State or Territory or District of Columbia, or who, 
being a citizen of the United States, shall have attended or pursued 
a regular course of instruction in any military school or college of the 
United States Arm3^" Held, that the purpose of the statute is to 
secure a list of persons specially qualified to hold commissions in any 
future volunteer force and, tnerefore, the act should be liberally 
construed. C. I4I48-E, Mar. 11, 1908. Held, that it was obviously 
within the meaning of the act of January 21, 1903, that members of 
the Organized Mihtia should be considered as proper candidates for 
the list of eligibles for volunteer commissions provided for in section 
23 of that act. C. I4I48-A, Aug. 26, 1904. Held, that the entry of 
the name of an applicant on the list of eligibles provided in the above 



744 MLITIA XVIII A. 

section does not confer military rank. C. lJi.lJi.8-F, Oct. 29, 1908. 
Held, that the current appropriations for the support of the Army are 
appHcable to the purpose of paying to ehgibles for volunteer com- 
missions who attend military schools, the same allowances and 
commutation as provided in the act of January 21, 1903, for the 
officers of the Organized Mihtia. C. UU8,0ct. 2, 1903. 

XVIII A. As no legislation of Congress imposes duties upon the 
War Department or any of its bureaus in connection with the Naval 
Militia, and as arms for its use are expressly provided for in the 
current appropriation for the Navy, lield, that if small arms of the 
tvpe used by the Regular Army be furnished it would constitute a 
charge against the appropriation for the support of the Navy. C. 
14694., May 22, 1903. The War Department has no statutory rela- 
tions with the Naval Militia, which does not constitute a part of the 
Organized Militia of the United States within the scope of the act of 
Januar}^ 21, 1903 (32 Stat. 775), as no portion of it has ever partici- 
pated in the apportionment of the appropriation provided by section 
1661 R. S., as amended. Held, that the War Department is 
without authority to sell stores to a State for the use of its Naval 
Militia, and that the act of January 21, 1903, conveys no authority 
for the exchange of arms issued to the State by the Navy Depart- 
ment for the use of its Naval Mihtia. C. I4I48-A, Jan. 6, 1904. 

The Naval Militia has received legislative recognition in several 
acts of appropriation for the Navy and other enactments of Congress, 
all of which are executed by the Navy Department. In the expendi- 
ture of these appropriations and in the training of the Naval Militia, 
the War Department is without jurisdiction and has never attempted 
to assert or exercise control. It is a well settled priniciple in the 
accounting of the Government that where one appropriation is 
available for a specific object no other appropriation is available for 
the same work unless there is sometliing in the second appropriation 
to indicate an intention upon the part of Congress to make it availa- 
ble in addition to the appropriation for the specific object.^ Held, 
that the Naval Militia is, therefore, not a part of the Organized 
Militia of the State under section 14 of the act of January 21, 1903.^ 
C. 14148-A, Oct. 18, 1904- The right to participate in the national 
competition, which is provided for in the act of April 23, 1904 (33 
Stat., 274), is restricted to the forces therein named; and, as the 
Naval Militia is not among the forces expressly mentioned in that 
enactment as entitled to compete for prizes and trophies therein 
provided for, Jield, that members of the Naval Militia as such, should 
be excluded from the competition.^ C. 14694, Mar. 30, 1906, and 
June 15, 1907. 

XVIII B. The naval battalion. National Guard, District of 
Columbia,^ engaged in a 10-day's practice cruise, in connection with 

1 1 Comp. Dec, 418. 

2 See XIII Comp. Dec, 673, officers of the Navy on duty on United States ships 
loaned to a State for nse of its Naval Militia under act of Aug. 3, 1894 (28 Stat. 219), 
are entitled to sea pay. 

' See (26 Op. Atty. Gen., 303) to the contrary. In which opinion the Secretary of 
War did not concur, he holding that the opinion can not authorize the department to 
pay for any of the expenses of the team from the naval brigade, or to furnish its sup- 
plies, or to do anything except to allow it to take part in the contest and receive the 
benefit, if it wins, of the trophy which the War Department will pay for. C. 14694f 
Aug. 16, 1907, 



MILITIA XIX A. 745 

joint maneuvers with the Regular Army, under section 15 of the act of 
January 21, 1903 (32 Stat. 776). Held, that it was not entitled to 
pay from the appropriation "encampment of the Organized Mhtia 
with troops of the Regular Army, 1907 and 1908" as Congress in that 
legislation had in view solely that portion of the miUtia assimilated 
to the Army, and did not contemplate payment to the Naval MiUtia. 
Held, also, that it was not entitled to pay under section 14 of the act 
of January 21, 1903, as the maneuvers come under section 15 of the 
act, and, also lield that the battalion is entitled to pay out of moneys 
appropriated by Congress for the District in the act of March 2, 1907 
(34 Stat. 1154), wMch specifically provides for practice cruises.^ 
C. 5326, July, 1907. 

XIX A. Request was made for an opinion as to whether or not 
an honorable discharge from the Orgamzed Mihtia entitles an ahen 
to citizenship on a showing of a residence of one year in the United 
States. Held, that service in the mihtia is not regarded as service 
"in the Armies of the United States, with the Regular or Volunteer 
forces" within the meaning of section 2166, R. S., relating to the 
naturahzation of ahens. C. 16818, Aug., 190^; 14148-G, June, 1910. 

XX A. The act of March 2, 1895 (28 Stat. 788), authorizes the 
Secretary of War to furnish to the governor of any State, at the 
expense of the State, a transcript of the history of any regiment or 
company "of his State." Held that this act appUes to State troops 
organized, officered, etc., by the States to enter as volunteers into the 
service of the United States and also to the Organized Mihtia of the 
States that were mustered into the service of the United States, but 
not to those organizations that were distinctively United States 
organizations and with which the States had notliing to do. The fact 
that the United States necessarily went into the States to recruit and 
raise the latter organizations does not make them regiments and 
companies of the State within the meaning of the act cited. C. 3894, 
Feb., 1898.^ 

XXI. Prior to January, 1903, it was contrary to the practice of 
the Judge Advocate General's Office, War Department, to discuss 
matters relating to the mihtary administration of the States. C. 
685, Nov. 24, 1894; 1287, Apr. 20, 1895; 3720, Bee. 9 and 21, 1897, 
and Sept. 10, 1907; 5638, Jan. 10, 1899; 6345, May 1, 1899; 10103, 
Mar. 29, 1901; 21594, May 28, 1907. Held, that j)urely State mat- 
ters relative to the State mihtia should be settled in the State. C. 
4065, Apr. 27, 1898. Held, that the propriety of the War Depart- 
ment passing on the sufficiency of a State law with regard to its 
complying with the condition in section 3 of the act of January 21, 
1903 (32 Stat. 775), as amended by the act of May 27, 1908 (35 Stat. 
400), that the organization of the National Guard must conform to 
that of the Regular or Volunteer Army of the United States is not 
free from doubt.^ 0. I4148-C, June 15, 17, and 18, Sept. 16 and 26, 

1 For question of purchasing clothing from moneys received from fines see XV Comp. 
Dec, 466. Chief boatswain of Navy, on duty without troops in connection with 
vessels loaned to a State is entitled to commutation of quarters (XII Comp. Dec, 713). 

2 26 Op. Atty. Gen., 303. 

' Note: Observe the fact that this opinion is limited to the sufficiency of the State 
law, and does not touch the question of the jurisdiction of the War Department to 
pass on the question of the conformity of the organization of the national guard of a 
State to the requirements of the law above cited. 



746 MILITIA MISTAKE. 

1907, and Sept. 16 and 29, 1908. Upon presentation of a contem- 
plated militia law for a State, with request for information as to its 
sufficiency to meet the requirements of section 3 of the act of Jan- 
uary 21, 1903, it was Tield that the Judge Advocate General of the 
Army may advise as to the sufficiency for that purpose of the pro- 
posed law. C. 14148-H, Dec. 30, 1910.- 

CROSS REFERENCE. 

Abuse of civilians See Articles of War LIV F 2. 

Blank forms See Appropriations XXXVI D. 

Campaign badges to See Insignia of merit III B 1. 

Command of, at joint encampment See Articles of War CXXII B. 

Fraudulent enlistment of See Enlistment I A 9 e (1). 

Muster-in See Volunteer Army II B 2 to 3. 

Regular officer holding commission See Office IV A 2 d (1). 

Retired soldier may hold office in See Retirement II D 1. 

Sale or exchange of property to See Public property I A 4 a. 

Service in See Retirement I C 1 e. 

Status after called forth See Volunteer Army I. 

Volunteers not part of See Volunteer Army I B. 

MINES. 

On military reservations See Public property I A 1; III B. 

MINOR. 

Alien See Alien II. 

Candidate for West Point See Army I D 1 a (2) (a) to (6). 

Desertion See Desertion V B 7. 

Discharge See Discharge XII A to D 2. 

Enlistment See Enlistment I A 9 f (5) ; (6) ; g (2) ; CI b ; d. 

Rearrest of discharged minor See Command V A 6 b (1) (6) . 

Residence See Residence. 

MINORITY REPORT. 

Court of inquiry See Articles of War CXIX B. 

Retiring board See Retirement I B 1 d (3) ; 6. 

MISAPPROPRIATION. 

See Articles op WarLX A 3; D- LXI B 4. 

Captured property See War I C 6 e (3) (d). 

Public money See Discipline II D 16 a. 

MISCONDUCT. 

Act of Mar. 3, 1909 {35 Stat. 735) See Gratuity I B to II. 

Retired soldier See Retirement II B 3 to 4; F 3. 

Retirement See Retirement I B 3 c. 

Rule as to honest and faithful service See Enlistment I D 3 c (18). 

MISBEHAVIOR BEFORE THE ENEMY. 

See Articles of War XLII A. 
Desertion I E. 

MISTAKE. 

Bidder releated See Coktracts IX to X. 



MITIGATION — MUSTER IN. 747 

MITIGATION. 

See Articles of War CXII A to E. 

After disapproval See Discipline XIV E 9 b (1). 

Grounds for See Discipline IV C 2 a; XIV E 9 a (16); 

d (l)(a);(6); XV F to G. 
Pardon VI. 

Of sentence See Discharge XVI C 2. 

Penitentiary sentence See Discipline XIV H 3. 

Status, hoiv affected See Discipline XVII A 4 f. 

MORAL OBLIQUITY. 

Examining hoard lacks jurisdiction See Retirement I B 6 a to b. 

Retiring hoard lacks jurisdiction See Retirement I B 1 b (1) (a). 

MORNING REPORTS. 

Evidential value See Desertion IX B. 

Discipline XI A 17 a (2) (6) [2]. 

MORPHINE. 

Prescribed by surgeon See Retirement I B 6 f (1). 

MOTION. 
To strike out See Discipline II D 17 a; H 2; IX F 2 a; 3 a. 

MOTIVE. 

Embezzlement See Articles of War LXII C 2. 

Misappropriation See Discipline II D 16 a. 

MOUNT. 

Suitable See Pay and allowances I B 7 to 8 

Forage See Pay and allowances II A 2 d to e. 

MURDER. 

By soldier See Articles of War LIX L 2. 

Charge by civilian See Articles of War LIX G. 

Jurisdiction over by general court-martial. . .See Articles of War LXII A. 

Of prisoner of war See War I C 11 a. 

Of superior officer See Articles of War XXI E 1. 

MUSICIAN. 

Army in competition with civil See Army Bands. 

Retired soldier See Retirement II E 2 a. 

MUSTER AND PAY ROLL. 

Evidential value See Desertion IX C. 

Discharge II B 4. 

Discipline XI A 17 a (1); (2) (a) [1] 
[e] [A]. 
Purpose of. See Absence II B 8; 8 b. 

MUSTER IN. 

See Volunteer Army II to III. 

Drafted men See Enlistment II A. 

Evidence of. See Discipline XI A 17 a (1); (2) (a) [1] [e]. 

Pay before See Pay and allowances I A 1 a. 

Volunteer officers See Office V A 5 b to c. 



748 MUSTER, OUT NAME I A. 

MUSTER OUT. 

See Volunteer Army IV to V. 

Date of See Discharge XIII C. 

Effect on status See Discipline VIII I 1. 

Evidence oj See Discipline XI A 17 a (1). 

Jurisdiction of military, ends See Discipline III B 2 b. 

Notice oj See Discharge XIV D 3. 

Organizations See Discharge II B 4; III G; XIII F. 

MUTINY. 

See Articles op War XXII A; B; XCVII 
A. 

Muster outjor See Discharge II B 4. 

Punishment See Discipline XIV E 9 d (1) (6). 

NAME. 

I. NO LEGAL OBJECTION TO DROPPING— 

A. Middle Name Page 748 

B. "Junior." 

n. RESUMPTION OF CORRECT NAME. 
in. PROCEDURE TO CHANGE LEGAL NAME. 
IV. AUTHORITY TO CHANGE NAME ON ROLLS. 

I A. Held, that an officer can drop his middle initial in his official 
signature.! G. 9066, Oct. 6, 1900. 

I B. Held, that there is no legal objection to an officer's dropping 
the ''Junior" from his name during the life of his father, as the father 
is a civilian and there is no chance of confusion in their names. 
C. 86 17, Nov. 4, 1897. 

II. All officer upon entrance to West Point gave the name of his 
♦uncle, with whom he had lived. Later he applied for peraiission to re- 
sume the name of his father. Held, that upon satisfactory evidence 
being presented as to the correctness of the name presented as that 
of his father, the War Department could change the records so as to 
give him his legal surname, namely, that of his father. G. 3705, 
Dec. 4, 1897. 

III. A young man after appointment to West Point requested 
authority to change his name. Held, that he should apply to the 
proper State court at This domicUe for authority to change his name, 
and should upon reporting at West Point show that the name borne 
on his appointment had been legally changed. G. 18897, June 8, 
1911. 

IV. A soldier with an unpronounceable name requested authority 
to adopt a new name. Held, that the Secretary of War was without 
authority to authorize a change of the legal name, as that can be 
done only in the manner provided by State statute at his domicUe, 
or by his acquiring a new name by "reputation, general usage, or 
habit." 2 Held further, that outside of the inconvenience attending 
the notation of the change of the name on the records, etc., there was 
no objection to the Secretary of War authorizing the change, and 
that a simple notation on the rolls that the Secretary of War had 

* See Bouvier's Law Dictionary under "name," and 2 Op. Atty. Gen., 332; 3 
id.. 467. 
2 Enc. of Law, vol. 16, p. 118. 



NAME NAVIGABLE WATERS: SYNOPSIS. 749 

authorized the change would be sufficient. G. 38^8, Feb. 8, 1898; 
9228, Nov. 3, 1900; 11507, Nov. 6, 1901; 14165, Feb. 16, 1903; 18609, 
Sept. 25, 1905. 

CROSS REFERENCE. 

Assumed See Discharge XIV B 1. 

Change of by cadet See Army I D 4. 

Charges See Discipline II D 8 a; b; H 2. 

Company See Contracts I B 1. 

Corporation on seal See Bonds IV G . 

Omission of surety's, in bond See Bonds IMS. 

Variance in See Discipline XIV E 9 a (3). 

NATIONAL CEMETERY. 

See Public property IV A to B. 

Superintendent See Retirement D 4. 

Tax II A. 

NATIONAL HOME FOR DISABLED VOLUNTEERS. 

See Soldiers' Home II. 
NATURALIZATION. 

See Alien II; III. 
NAVAL CADET. 

See Retirement I A 1 c; C 1 b. 

NAVAL MILITIA. 

See Militia XVIII to XIX. 
NAVIGABLE WATERS. » 

I. LEGISLATION RESPECTING OBSTRUCTIONS Page 752 

A. What are Navigable Waters of United States? Page 753 

1. Highway for commerce with other States, etc Page 754 

a. May include artificial channels. 

(1) Erie and Atlantic Basins. 

(2) Bayonne Canal, N. J. 

b. Includes improved natural waterway Page 755 

2. May include floatable streams. 

B. Extent of Control. 

1 . Limited to interstate, etc. , commerce Page 766 

n. TITLE TO SOIL UNDER. 

A. In State or Riparian Owner. 

1 . Islands in Missouri River Page 757 

2. Islands in St. Clair Flats, Mich. 

B. Titles Subject to Servitude of United States. 

1. In hands of grantee from State Page 758 

2. In hands of lessee of oyster beds. 

3. Riparian rights subject to same Page 759 

a. Protection of banks. 

C. Subject to Servitude for Defensive Purposes Page 760 

D. Protection of Improvements. 

1. Title remains ia owner. 

a. Right of use in owner Page 761 

' Prepared by Mr. Lewis W. Call, Chief Clerk and Solicitor, Office of the Judge 
Advocate General, U. S. A. 



750 NAVIGABLE WATEES : SYNOPSIS. 

in. BRIDGES, ETC., CONSTRUCTION OF— LEGISLATION. 

A . Approval Under State Authority Page 762 

1. Jurisdiction of State and War Department distinguished. 

2. State authority should appear Page 763 

a. Plans must conform to State authority. 

b. ^Vhere bridge, etc., would stop navigation. 

c. WTiere structure is above point of navigability. 

3. Of plans for rebuilding bridge. 

B. Approval Under Special Statute. 

1. Where no approval required Page 764 

2. Approval of plans of existing bridge. 

3. Statute requirements as to plans, etc. 

a. Evidence required by War Department Page 765 

(1) Copy of charter. 

(2) Acceptance of act Page 766 

b. Minimum length of span. 

c. Wliere approved plans departed from. 

4. Where authority is implied. 

5. Time of commencement or completion. 

a. Secretary of War can not extend Page 767 

C. Assignment or Franchise. 

1. Must be authorized. 

a. Not implied in use of words "successors and assigns." 

b. Incident to transfer of property. 

D. Rock Island Bridge Page 768 

E. Merchants Bridge — Forfeiture. 

F. Temporary Structure on Ice. 
IV. BRIDGES: ALTERATION OF. 

A. Notice to Specify Changes Page 769 

1. Hearing as to changes and time Page 770 

2. Must be existing obstruction. 

3. Future needs to be considered. 

B. Notice Should be Precise. 

C. New Notice Under Repealing Statute. 

D. Where Receiver Appointed Page 771 

E. Where Plans Were Approved. 

F. Approval op Plans in Lieu of Notice. 

G. Enforcement of Alterations Page 772 

H. Closing of Draw During Repair. 

V. PERMITS FOR STRUCTURES, ETC., EFFECT OF. 

A. Kind of Permit. 

B. Delegation of Authority Page 773 

C. Matters Considered — Jurisdiction. 

1. As to structures in District of Columbia Page 774 

D. Kinds of Structures — Water Main. 

1. Siphon. 

2. Fish weir. 

3. Booms. 

E. Deposits in Harbors, etc. 

1. Beyond 3-mile limit - Page 775 

2. In "roadstead" opposite Chicago. 

3. In New York Harbor. 

F. Harvesting Ice. 

G. Necessary for Removal of Dam. 

H. For Diversion from Niagara River. 



NAVIGABLE WATEES : SYNOPSIS. 751 

VI. HARBOR LINES: GENERAL CONSIDERATIONS Page 776 

A. Established for Interstate, Not Local Traffic. 

1. Where located Page 111 

• 2. Relocation of. 

B. Where None Located, State May Establish. 
Vn. REMOVAL OF SUNKEN WRECKS, ETC. 

A. Delegation of Authority Page 778 

B. Notice to Owners. 

1. Right of owners to remove. 

2. Obligation where result of negligence Page 719 

3. No obligation where without fault. 

C. When Not Abandoned. 

1. Lien for costs. 

2. Priority of liens. 

D. When no Menace to General Navigation Page 780 

Vra. CANALS: RULES FOR NAVIGATION Page781 

DC. JURISDICTION TO ENFORCE THE STATUTES. 

A. In the Law Officers and Courts. 

1. WTiere draw closed. 

2. Against dumping in Lake Michigan Page 782 

B. Authority for Arrest, etc 

0. Authority of Secretary of V7ar to Order Removal of Obstructions 
IN General. 
X. IMPROVEMENTS OF. 

A. Execution of Appropriations Not Discretionary. 

1. Permissive words mandatory Page 783 

2. Estimates for. 

3. Effect of proviso in. 

B. Under Engineer Department. 

1. Work civil, not military Page 784 

a. Pay of engineer officers on. 

2. Disbursement of appropriation by. 

€. May be by Contract or Otherwise Page 785 

1. Contractor may obstruct navigation. 

D. Purchase of Land, etc., for. 

1. Purchase of flowage rights. 

a. Easement not revocable Page 786 

2. Lease of land for. 

3. Government liable for property taken. 

4. Officer liable for trespass. 

E. LTjjDER License from Owner. 

i 1 . Withdrawal of grant or license after expenditure 

' F. Sale of Land, etc Page 787 

1. Warranty deed. 

2. Delegation of authority Page 788 

3. Property not military stores. 

4. Abandoned property, sale or use of. 

G. Lease of Land Acquired for Page 789 

XI. RIVER COMMISSIONS. 

A. Mississippi Commission: Authority of. 

1. Disposal of maps by. 

B. Missouri Commission: Duties of. 

C. Traveling Expenses of Members. 

D. Subsistence op Guests. 



752 NAVIGABLE WATERS I. 

I. The power of Congress to legislate, under the commerce clause 
of the Constitution, for the prevention and removal of physical obstruc- 
tions to navigation was not exercised otherwise than by way of 
improvements carried on by the United States, and except for an 
occasional act of Congress authorizing the erection of a bridge across 
a navigable river, and except for the general legislation regarding 
bridges over the Ohio River (act of Dec. 17, 1872, 17 Stat. 398, as 
amended Feb. 14, 1883, 22 Stat. 414), until the act of July 5, 1884 
(23 Stat, 148), section 8 of which made it the duty of the Sec- 
retary of War, on satisfactory proof that any bridge then or there- 
after constructed "over any navigable water of the United States, 
under authority of the United States or of any State or Territory, 
is an obstruction to the free navigation of such water, by reason of 
difficulty in passing the draw opening or raft span of said bridge," 
to require the company or persons owning or operating the bridge to 
provide the same with such aids to navigation as he niay^ specify in 
the order. This was followed by more explicit legislation in the 
act of August 11, 1888 (25 Stat. 400), section 9 of which empowered the 
Secretary of War to give notice to the persons or corporations owning 
or controlling any obstructive bridge to "so alter the same as to 
render navigation through or under it free, easy, and unobstructed;" 
and section 10 made the failure to remove the bridge or to alter the 
same, after receiving such notice, punishable by a fine of $500 per 
month. The jurisdiction of Congress was more fully exercised in the 
act of September 19, 1890 (26 Stat. 426). Sections 4 and 5 amended 
sections 9 and 10 of the act of 1888 so as to make them more defi- 
nite, and increased the penalty for failure to comply with the notice 
of the Secretary of War — requiring, also, that the parties interested be 
given reasonable opportunity to be heard before the issue of the notice. 
Section 6 prohibited the deposit of refuse matter where it would tend 
to obstruct navigation. Section 7 (as amended by sec. 3 of the act 
of July 13, 1892) (27 Stat. 88) prohibited the erection of wharves, 
dams, breakwaters, or other structures or excavation or filling, in 
navigable waters of the United States, without the permission of the 
Secretary of War; precluded States from authorizmg the construc- 
tion of bridges over navigable waters which are not wholly within 
their territorial limits; and provided that it should not be lawful to 
commence the construction of a bridge over a navigable water of 
the United States, under an act of a State legislature, "until the 
location and plans of such bridge" have "been submitted to and 
approved by the Secretary of War." Section 8 authorized the 
removal of wrecks of vessels; section 9 prohibited injury to works 
for the improvement of navigation; section 10 forbade the location 
or continuance of obstructions to navigation; and section 12 author- 
ized the establishment of harbor lines. The prior legislation on the 
subject was amended and consoHdated by the act of March 3, 1899 
(30 Stat. 1121); and forms sections 9 to 20, inclusive, of that act. 
Section 9 relates to bridges, dams, or causeways; section 10 relates 
to other structures and to excavating or filling; section 11 relates to 
the establishment of harbor lines; section 12 prescribes a penalty for 
violations of sections 9, 10, and 11; section 13 prohibits the deposit of 
refuse matter where it will injure navigation; section 14 forbids injury 
to works for the improvement of navigation; section 15 relates to 



NAVIGABLE WATERS I. 753 

obstructions caused b^ anchoring vessels or by sunken vessels, timber, 
etc.; section 16 provides a penalty for violations of sections 13, 14, 
and 15; section 17 provides for thie enforcement of the provisions of 
sections 9 to 16, inclusive, by the Department of Justice; section 18 
relates to the alteration of obstructive bridges; and sections 19 and 
20 relate to the removal of sunken or grounded vessels, etc. By the 
act of March 23, 1906 (34 Stat. 84), general provisions were enacted 
to govern as to grants by Congress to ' ' any persons to construct and 
mamtain a bridge across or over any navigable water of the United 
States "^ — the act requiring, inter aha, the approval of the plans by 
the Chief of Engineers and the Secretary of War; and by the act 
of June 21, 1906 (34 Stat. 386), as amended June 23, 1910 (36 Stat. 
593), similar legislation was enacted to govern in respect to dams 
which Congress might thereafter authorize over navigable waters. 

1 A. Those rivers must be regarded as public navigable rivers in 
law which are navigable in fact. And they are navigable in fact when 
they are used or are susceptible of being used in their ordinary condi- 
tion as highways for commerce over which trade and travel are or may 
be conducted in the customary modes of trade and travel on water. 
And they constitute navigable waters of the United States, in contra- 
distinction from the navigable waters of the States, when they form 
in their ordinary condition by themselves or by uniting with other 
waters a continued highway over which commerce is or may be carried 
on with other States or foreign countries in the customary mode in 
which such commerce is conducted by water.^ The true test of the 
navigability of a stream does not depend on the mode by which com- 
merce is or may be conducted, nor the difficulties attending navigation. 
It would be a narrow rule to hold that in this countr}'- unless a river 
was capable of being na^'igated by steam or sail vessels, it could not 
be treated as a public highway. The capability of use by the public 
for purposes of transportation and commerce affords the true criterion 
of the navigability of a river, rather than the extent or manner of that 
use. If it be capable in its natural state of being used for purposes of 
commerce, no matter in what mode the commerce may be conducted, 
it is navigable in fact and becomes in law a public river or hio;hway.^ 
Applying these tests to a tributary of the Mississippi River in Ten- 
nessee, it was held that tlie same was a navigable water of the United 
States ; that the fact that all acts of the State legislature declaring a 
certain part of the river navigable had been repealed did not affect 
the question of the navigability of that part so far as the laws of the 
United States were concerned. For example, the duty of the Secre- 
tary of War, under section 4, act of 1890, with respect to unreasonable 
obstructions to navigation over the part referred to, would be unaf- 
fected by the repeal of the State laws. 0. 1511, July, 1895; 1709, 
Sept, 1895; 15029, July 30, 1903; 17989, May 6, 1905. 

* See the definition of the term, "navigable waters of the United States," in the 
Daniel Ball, 10 Wall., 557; Ex parte Boyer, 109 U. S., 629. See also Chisholm v. 
Caines, 67 Fed. Rep., 285; St. Anthony Falls Water Power Co. v. Water Commissioners, 
168 U. S., 349; Leovy v. U. S., 177, id., 621. Statutes passed by the States for their 
own uses, declaring small streams navigable, do not make them so within the Con- 
stitution and laws of the United States. Duluth Lxunber Co. v. St. Louis Boom & 
Improvement Co., 17 Fed. Rep., 419. 

2 The Montello, 20 Wall., 430. 

93673°— 17 48 



754 NAVIGABLE WATERS I A 1. 

I A 1. A river is a navigable water of the United States when it 
forms by itself or by its connection with other waters a continued high- 
way over which commerce is or may be carried on with other States 
or iforeign countries in the customary modes in which such commerce 
is conducted by water. If a river is not itself a highway for com- 
merce with other States or foreign countries, or does not form such 
highway by its connection with other waters, and is only navigable 
between different places within the State, then it is not a navigable 
water of the United States but only a navigable water of the State.* 
So lield, that Devil's Lake being wholly within the State of North 
Dakota and having no visible outlet was not a navigable wat^ of 
the United States and therefore not subject to the laws of Congress 
relating to such waters. A bridge may be built across this waterway 
under the laws of the State Avithout reference to the Federal Govern- 
ment unless the bridge is to be located on Federal property. C. 7750, 
Mar., 1900; 1139 J^, Oct. 18, 1901; 18947, Dec. 21, 1905. 

iSeld,, also, that the French Broad River, which has tAvo navigable 
stretches, one in North Carolina and the other in Tennessee, sepa- 
rated by a long stretch of river not navigable within the accepted 
definition of that term, could not be regarded as a navigable water of 
the United States; and that to make it such there must be a coiv- 
tinuity of navigation or of navigable capacity. C. 24811, Apr. 23, 1909. 

I A 1 a. The engineer officers of the Army, in opening a channel in a 
navigable river, for the improvement of which appropriation had been 
made by Congress, were assisted and cooperated with by a local 
transportation company which owned the land adjoining the channel 
which it was using for its own boats. Upon the completion of the 
improvement this company proceeded to levy a toll on other vessels 
passing through the channel. HeJd that such toll was an obstruction 
to navigation and could not legally be enforced, the fact that the com- 
pany owned the land giving it no exclusive right to the free use of 
navigable waters of the United States. R. 50, 538, July, 1886. 

I A 1 a (1). The Erie and Atlantic Basins, in New York Harbor, 
are private property, but they are also navigable waters of the 
United States; and the cwmers of the soil under the water hold the 
title subject to the rights of the public to navigate such waters, and 
are therefore not empowered to fill in the basins and deprive the 
public of their Use. Moreover, they are waters over which the 
United States has expressly assumed jurisdiction in prohibiting, by 
the act of June 29, 1888, the dumping of deposits *4n the tidal waters 
of the harbor of New York, or its adjacent or tributary waters, within 
the limits which shall be prescribed by the supervisor of the harbor." 
Held, that the subsequent establishment, under the act of August 11, 
1888, s, 12, of harbor lines in that harbor outside these basins did not 
oust this j.urisdiction, but that the act of June 29, 1888, was still in 
force. P. 50, 366, Nov., 1891; O. 21290, Mar. I4, 1907. 

I A 1 a (2). Held, that the Bayonne Canal, in Hudson County, N. 
J., was navigable water of the United States subject to the admiralty 
jurisdiction of the United vStates district coiu't and to the laws of Con- 
gress for the enrollment and licensing of vessels and otheiwise regu- 

» The Moutello, 11 Wall., 411; 20 Op. Atty. Gen., 101. 



NAVIGABLE WATERS I A 1 b. 755 

lating commerce, and could not therefore legally be obstructed by 
filling up or damming, by a railroad company, without the permission 
of the Secretary of War under the act of September 19, 1890. P. 44f 
152, Dec, 1890; 0. 16231, May 4, IdOJ^; 18728, Oct. 16, 1905. 

I A 1 b. On the question of whether the Bayou St. John at New 
Orleans, La., is a navigable water of the United States under the 
control of the Secretary of War, lieU, that as the bayou was improved 
by the Carondolet Canal & Navigation Co. and its privies in title, 
Under contract wdth the State, there could be no question that the 
corporation had a valid right to charge tolls as authorized by its 
contract; that such right could not be di^^ested without compensa- 
tion to the company for the francliise as well as for such property as 
it might have acquired incident to the improvement;^ that a river 
does not become a canal from having had its navigation improved 
by artificial means;- and that the bayou, as improved, was a navi- 
gable water of the United States, subject to the powers of Congress 
to regulate commerce and to the general legislation of Congress for 
the protection of na\'igable waters from obstructions. U. 18982, 
Dec. 23, 1905. 

I A 2. Held, that it was doubtful whether ''floatable" streams, i. e., 
streams capable only of being used for floating sawlogs, timber, etc., 
not being navigable in a general sense, were included in the term 
*'na\agable waters of the United States," as employed in statutes pro- 
viding that dams shall not be constructed in such waters without the 
permission of the Secretaiy of War. But lieM that it was clearly 
competent for Congress, under the commerce clause of the Constitu- 
tion, to exercise control over such streams as highways of interstate 
commerce. P. 63, 375, Feb., 189 1^; G. 12905, Sept. 29, 1902; 21290, 
Mar. 14, 1907 (p. 15). ^ 

I B. Held that as the withdrawal of water from the Rio Grande for 
the purpose of irrigation by means of pumps had reached such a stage 
as to seriously impau* its navigable capacity, the Secretary of War 
could legally prevent, not only the installation of new plants for the 
withdrawal or the waters of this river, but also the further mthdrawal 
by existing plants; and advised that notice be pubUshed that the War 
Department regards further diversion of its waters as a violation of 
sections 10 and 12 of the act of March 3, 1899 (30 Stat. 1151); that the 
construction of any additional works for the purpose will not for the 
present be sanctioned; and that diversion by existing works be hmited 
so as not to injuriously affect the navigable capacity of the river. O. 
27899, Nov. 21,1911. Held further, with reference to the contention 
that the withdrawal of water by means of pumps involves no construc- 
tion in the stream such as is forbidden by section 10 of said act, that 
the statute applies not only to structures which obstruct navigation 
but also to other changes which ''modify the course, location, condi- 
tion, or capacity of * * * the channel of any navigable water of 
the United States"; and that the withdrawal of sufficient water to 
affect the navigable capacity of a stream would be within the letter 

1 Tluae V. Glover (119 U. S., 543); Sands v. Manistee River Improvement Co. (123 
U. S., 288), Monongahela Navigation Co. v. United States (148 U. S., 312). 
^ People V. Improvement Co. (103 111., 491). 



756 NAVIGABLE WATERS I B 1. 

as well as the spirit of the prohibition.^ C. 27899, June 27, 1911. 
Held further that the word ''channel," sometimes used m a restricted 
sense and sometimes as comprising the entire bed of a river, including 
the flowing water, in view of the object and purpose of the statute and 
in the light of the decision of the Supreme Court in United States v. 
Kio Grande Irrigation Co. (174 U. S., 690, 708), should be regarded as 
here used in the enlarged sense. C. 27899, June 27, 1911. 

I B 1. Held, with respect to the authority of the Secretary of War 
to prevent the construction of a sewer outlet in the Hudson River, 
that the navigable waters of the United States are not brought within 
the exclusive control of Congress save in matters connected with 
interstate and foreign commerce; that in other respects all internal or 
riparian waters are fully subject to State control,^ as in the regulation 
of fisheries, the control of the shores, the ownership of submerged 
lands, etc., so that the control of waters for drinking and sanitary 
purposes, and the regulation of the flow and of the deposit of sewage, 
are matters fully within the control of the several States as an incident 
of their police power, except in so far as concerns structures which may 
obstruct navigation, which must be authorized by the Cliief of Engi- 
neers and the Secretary of War under section 10 of the act of March 3, 
1899. C. 21290, Mar. 14, 1907. 

II A. The United States is not the owner of the soil of the beds of 
navigable waters, nor of the shores of tide-waters below high-water 
mark, nor of the shores of waters not affected by the tide below the 
ordinary water line of the same, except as it may have become grantee 
of such soil from the State or from individuals. The property in and 
over the beds and shores of navigable waters is in general m the State, 
or in the individual riparian owner.^ But under the power to regulate 
commerce, Congress may assume, as it has recently assumed, the 
power so to regulate navigation over navigable waters within the 
States as to prohibit its obstruction and to cause the removalof 
obstructions thereto, and such power when exercised is "conclusive 
of any right to the contrary asserted under State authority." * In 

1 See U. S. V. Rio Grande Irrigation Co. (174 U. S., 690, 708), where the court, having 
under consideration sec. 10 of the act of Sept. 19, 1890 (26 Stat. 454), substantially iden- 
tical, so far as respects this question, with the act of 1899, held that the withdrawal of 
water above the point of navigation by means of a dam so as to impair the navigability 
of the river was within the prohibition of the act, using the following language regard- 
ing the scope of the prohibition: "It is not a prohibition of any obstruction to the 
navigation, but any obstruction to the navigable capacity, and anything, wherever 
done or however done, within the limits of the jurisdiction of the United States which 
tends to destroy the navigable capacity of one of the navigable waters of the United 
States, is within the terms of the prohibition. " 

2 McCready v. Virginia (94 U. S., 391, 396); Escanaba v. Chicago (107 id., 678); Lake 
Shore & Michigan Southern Ry. Co. v. Ohio (165 id., 365); Cardwell v. American 
Bridge Co. (113 id., 205); Huse v. Glover (119 id., 543); Cummings v. Chicago (188 id., 
410, 430). 

3 Pollard V. Hagan, 3 Howard, 212; Barney v. Keokuk, 94 U. S.,337; Gilman v. 
Philad., 3 Wallace, 713; South Carolina v. Georgia, 93 U. &., 4; 6 Opins. Atty. Gen., 
172; 7 id., 314; 16 id., 479; Illinois Cent. R. Co. v. Illinois, 146 U. S., 387; Shively v. 

. Bowlby, 152 id., 1; Scranton v. Wlieeler, 57 Fed. Rep., 803; Scranton v. Wheeler, 
179 U. S., 141; West Chicago R. R. Co. -y. Chicago, 201 U. S., 506; Union Bridge Qo.v. 
U. S., 204 U. S., 364. 

^Wisconsin v. Duluth, 96 U. S., 379; U. S. r. City of Moline, 82 Fed. Rep., 592; 
Leovy v. U. S., 92 id., 344; Leovy v. U. S., 177 U. S., 621. 



NAVIGABLE WATEES II A 1. 757 

exercising this power, it can not divest rights of title or occupation in 
a State or individuals, but these rights are left to be enjoyed as before, 
subject, however, to the paramount public right of freeing navigation 
from obstruction possessed and exercised by the United States 
through Congress. In the execution of the laws relating to obstruc- 
tions to navigation the Secretary of War has no general authority, but 
only such as may have been vested in him by legislation of Congress, 
especially in the rivei and harbor appropriation acts.^ P. 15, 272, and 
16, 244, Mar. and Apr., 1887; SI, 42, B, 386, and 35, 234, ^pr. to Sept., 
1889; 42, 85, July, 1890; 51, 196, 55, I40, and 56, 483, Jan. to 
Dec, 1892; 58, 450, Mar., 1893; 63, 365, Feb., 1894; C. 2138, Mar., 
1896; 7658, Feb. 7, 1900; 8360, June 4, 1900; 11019, Aug. 10, 1901; 
11111, Aug. 29, 1901; 11827, Dec. 30, 1901; 16691, Sept. 10, 1901; 
12081, Feb. 25, 1902; 16213, Apr. 25, 1904; 16231, May 4, 1904; 17329, 
Jan. 6, 1905; 25947, Dec. 15, 1909. 

II A 1 . All islands in the Mssouri Kiver and in the State of Ms- 
souri, which were formed and in existence prior to the admission of 
the State into the Union, belonged either to the United States or to 
the parties to whom the United States or Spain had granted them. 
Upon the admission of the State into the Union the National Govern- 
ment relinquished to the State ownership) of the bed of the river ^ 
therein, and since admission of the State islands formed on the bed 
have belonged to the State,^ or may belong for school purposes to the 
counties in which they are situated under an act of the Missouri Legis- 
lature approved April 8, 1895. The matter of purchasing for river 
improvement purposes for the United States willow brush and other 
material, products of these islands, would thus depend upon the 
question of title to the islands and control thereof at the time the 
purchases are made. C. 3186, May, 1897. 

II A 2. On the question raised as to the authority to reserve two 
islands formed by the deposits of material from the new canal, at the 
St. Clair Flats, Mich., Jield, that if the St. Clair Flats belong to the 
system of lakes, under the law of Michigan the title to land below 
low-water mark would be in the State, otherwise in the riparian 
owners ^ and that the United States would not acquire title by 
filHng in the submerged land. C. 20170, Aug. 9, 1906. 

II B. Held, with respect to the claim that all the pi-operty required 
for a right of way for the canal connecting Lake Washington with 
Puget Sound had not been acquired because there were outstanding 
leases to certain submerged lands in Salmon Bay, a navigable water- 
way of the United States, wliich would be required for the canal and 
locK sites, that the title of the State or its grantee thereto is subject 
to the right of the United States to take and use the lands for any 
construction in aid of navigation, or for any channel for navigation, 

* See the subsequent opinion of the Attorney General in 20 Op., 101. 

2 See Pollard v. Hagan, 3 Howard, 212; Goodtitle v. Kibbe, 9 id., 471; Doe v. Beebe, 
13 id., 25; Withers v. Buckley, 20 id., 84. 

' Cooly V. Golden, 23 S. W. Reporter, 100. 

■* Gould on Waters, 3d edition, sec. 75, and authorities cited, especially Backus v. 
Detroit (49 Mich., 110); and Lincoln v. Davis (53 id., 375). 



758 NAVIGABLE WATERS II B 1. 

without compensation to the State or its grantee/ so that it would 
not be necessary to acquire such submerged lands. C. 20959, June 
29,1911. 

II B 1 . Held, with respect to the right of the United States to main- 
tain a wharf projecting from the military reservation of Fort Mason, 
Cal., on submerged land held by private parties under grant from the 
State, through the city of San Francisco, and to dredge channels 
through such lands for access thereto, that the title to submerged 
land under navigable waters of the United States, whether in the 
State or a private grantee, was subject to the servitude or easement 
in favor of navigation, and to the power of the United States, under 
the commerce clause of the Constitution to occupy the same for any 
purpose in aid of navigation, without compensation, and also to the 
regulation by the United States of the use of the same so far as neces- 
sary to prevent the obstruction of navigation; and that the wharf, 
being an aid to navigation, could be lawfully maintained thereon 
without compensation to the owners.^ C. 16630, Nov. 27, 1907, and 
Mar. 2, 1908. 

II B 2, On the question of whether the adoption of a resolution 
by Congress, declaring the tunnels under the Cliicago River to be 
obstructions to navigation and directing their modification in accord- 
ance with its terms, would involve the United States in any pecuniary 
liabihty, held that as the tunnels were constructed without authority 
of Congress the builders were presumed to know that in placing them 
under a navigable water of the United States they could be main- 
tained only so long as they afforded no obstruction to the navigation 
of such water; that their alteration could be requhed in the interests 
of navigation, without compensation; and that the ownership of the 
soil under the river was immaterial, since such ownership, whether 
in the State, municipality, or in a private individual, is subject to the 
paramount right of navigation and to the authority of Congress to 
remove obstructions to navigation. C. 7798, Jan. 12, 1903. 

Held also with respect to the question of whether, in carrying out a 

g reject authorized by Congress for the improvement of Tuckerton 
reek, N. J., by dredging a channel at the mouth of the same through 
oyster beds occupied under lease fi-om the State of the submerged 
lands for oyster culture, it would be necessarj^ to extinguish the lease- 
hold interests of the lessees, that such action would not be necessary, 
since the title to submerged lands, whether in the State or a grantee 
or a lessee of the same, is a quahfied one subject to the easement or 
servitude in favor of public navigation and to the right of the Govern- 

' Hawkins Point Light House case, 39 Fed. Rep., 77; Lewis Bluepoint Oyster 
Cultivation Co. v. Briggs, 198 N. Y., 297—91 N. E., 846. In the latter case it was 
held that the lessee of land under navigable waters, for use in the cultivation of 
oysters, had no right in the land which was not subject to the power of the United 
States to construct improvements in aid of commerce and navigation; that in planting 
oysters lie ran the risk that the crop might be interfered with whenever Congress 
decided to improve navigation; and that "The rule rests upon the _ principle of 
implied reservation, and that in every grant of lands bounded by navigable waters 
where the tide ebbs and flows, made by the crown or the State as trustees for the 
public, there is reserved by implication the right to so improve the water front to aid 
navigation for the benefit of the general public without compensation to the riparian 
owner." 

2 So held by the Acting Attorney General in an unpublished opinion, dated May 8, 
1906. 



NAVIGABLE WATERS II B 3. 759 

ment to take the lands without compensation for the improvement 
of the waterway to make it subserve the purposes of commerce,^ 
C. 218U, July 23, 1907. 

II B 3. With reference to the proposed dredging of a channel in 
Sabine Lake, Tex., near the shore, the effect of which would be to 
throw up an embankment on the lake alongside of the proposed cut 
and thus prevent riparian owners from constructing docks out 
beyond the channel to the deep water of the lake, held that the 
riparian owners could have no legal claim against the United States 
on this ground, regardless of whether or not they owned the title 
to the soil in front of their uplands, since any title wliich they might 
have would be subject in their hands to the same paramount right or 
servitude of the Government as it would be in the hands of the State.^ 
a 17329, Jan. 6, 1905; 11827, Bee. 30, 1901. Similar lieU, with 
respect to the lowering of the level of Lake Washington, in the 
project for a ship canal comiecting Lakes Union and Washington 
with Puget Sound ; and that the State would have the same power in 
respect to its navigable waters, so that even if the lake be regarded as 
a navigable water of the State, the release of the United States, by the 
act of February 8, 1901 (Laws of Washington, 1901, p. 7), from all 
liabihty to the State, its successors or assigns which would result 
from the proposed improvement, would be sufficient, as such release 
would bind subsequent grantees of the State.^ C. 20959, Mar. 2, 
May 17, and June 2, 1911. 

II B 3 a. With reference to the claim of the property owner of 
submerged lands in Chesapeake Bay under grant from the State 
of Maryland for compensation for the occupation of a portion of the 
same by a sea wall in fi'ont of the Fort Armistead Mihtary Reserva- 

* It is generally held that the title to submerged lands under a navigable water 
of the United States and within the limits of a State is in the State and may be granted 
to individuals subject to the right of the United States to take the same without com- 
pensation for the improvement of navigation or for structures in aid of navigation. 
Hawkins Point Lighthouse case, 39 Fed. Rep., 77; Gibson v. U. S., 166 U. S., 269, 
276; Scranton v. Wheeler, 179 U. S., 141; Chicago, Biu-lington & Quincy R. R. Co. v. 
Drainage Com'rs, 200 U. S., 561; West Chicago R. R. Co. v. Chicago, 201 U. S., 506; 
Union Bridge Co. v. U. S., 204 U. S., 364; Lane v. Smith, 71 Conn.— 41 Atl., 18; Lane 
V. Board of Harbor Commissioners (Connecticut), 40 Atl., 1058. See also Gilman v. 
Philadelphia (3 Wall., 713, 725), where the court said, respecting the control of navi- 
gable waters lor commerce: "For these purposes they are i\ie public property of the 
United States, and subject to all the requisite legislation by Congress. And in 
Pollard's Lessee v. Hagan (3 How., 230), the court said: "The right of eminent domain 
over the shores and the soil under the navigable waters /or all municipal purposes 
belongs exclusively to the States within their respective territorial jurisdictions * * * 
But in the hands of the States this power can never be used so as to affect the exercise 
of any national right of eminent domain or jurisdiction with which the United States have 
been invested by the Constitution. For although the territorial limits of Alabama 
have extended all her sovereign power into the sea, it is there, as on the shore, but 
municipal power, subject to the Constitution of the United States and the laws which 
shall have been made in pursu/ince thereof." 

2 Gibson V. United States (166 U. S., 272); Scranton v. Wheeler (179 U. S., 143); 
Lewis Bluepoint Oyster Cultivation Co. v. Briggs (198 N. Y., 297); Hawkins Point 
Lighthouse case (39 Fed. Rep., 88); Sage v. City of New York (47 N. E., 1101); Phila- 
delphia Co. V. Stimson, 223 U. S., 605, Mar. 4, 1912. 

3 Bilger et al. v. State et al. (116 Pac, 19). See a,lso Van Siclen v. Muir (46 Wash., 
41 — 89 Pac, 188), where it was held that an "Upland owner has no riparian or littoral 
rights in the navigable waters of a lake. These belong to the owners of the shore lands, 
and if they belong to the State it only can claim that an obstruction placed in the 
waters is an interference with the riparian and littoral rights." 



760 NAVIGABLE WATERS II 0. 

tion, lield that the United States, as riparian owner, had the right 
to construct the sea wall as a right of necessity ^ to protect the bank 
without obstructing navigation. C, 12081 , Feb. 25, and Aug. 22, 1902. 

II C. Where claim was made for the use by the Government of a 
wharf on submerged land in front of Fort Mason, Cal., under grant 
from the State, through the city of San Francisco, held that the Gov- 
ernment would appear to have acquired title by prescription.^ C. 
16630, Aug. 3, 1904- Held further that the reservation having been 
declared prior to the grant from the State, the submerged lands in 
front of the same should be regarded as subject to a servitude in the 
United States for defensive purposes, so that no use could be made 
by the grantee of the submerged land which would interfere with 
such purposes; and that there was strong analogy between this 
power and that of commerce. 0. 16630, Feb. 12, 1906. Similarly 
held with respect to the authority of the United States to lay and 
maintain water mains under navigable waters between the States of 
New Jersey and New York, for the purpose of supplying water from 
the State of New Jei-sey to Fort Wadsworth, N. Y.— the statutes of 
New Jersey forbidding the transportation of water from the State, 
and also the use of the submerged land of the State for the purpose — 
that wliile the title to the sod under the water was in the State, this 
ownersliip, under the decisions, was not an absolute one, but quali- 
fied by the servitudes in favor of navigation; that similar reasons 
justify the view that the title of the State to such submerged lands 
IS subject also to the right of the United States to vise the same for 
other constitutional purposes, such as the laying of mines for harbor 
defenses, the laying of conduits and mains for electrical communica- 
tion between fortifications, and for supplying water for the use of 
the garrisons of the fortifications. HeUi further that the statutes of 
the State could not be regarded as including the United States, since 
the State could not control the operations of the General Govern- 
ment witliin the sphere of its activities. 0. 26142, June 7, 1910. 

II D. Under the power to improve navigation. Congress may 
appropriate for, and the Secretary of War may cause to be erected, 
a pier in Lake Michigan, and after its erection the United States has 
the authority of conservation of the same. P. 54, 4'^7, Aug., 1892. 
And see R. 51, 609, Mar., 1887. Its exercise may be discontinued 
or abandoned when the work — such as a jjier, dam, breakwater, 
etc. — is no longer needed for the iniprovement of navigation. P. 32, 
375, May, 1889; 39, 99, and 42, 210, Feb. and July, 1890; C. 13680, Nov. 
25, 1902. 

II D 1. Held that the budding of a dyke, under an appropriation 
for the improvement of the navigation, of the Hudson River, did not 
of itself vest in the United States a property in the soil or give it any 
title thereto ; ^ that the property in the river frontage was affected by 
the rights of the United States only so far as concerned the naviga- 
tion of the river and the maintenance and conservation of the work 
of improvement, and that the owner might legally make any use of 
his property that he might see fit provided it did not obstruct naviga- 

» Diedrich v. Northern Union Ry. Co., 42 Wis., 262; Gould on Waters, sec. 160. 
^ So held by the Attorney General in an unpublished opinion dated May 6, 1906. 
^ 6 Op. Atty. Gen., 172; 7 id., 314; Hawkins Point Lighthouse Case, 39 Fed. Rep., 
77; Scranton v. Wheeler, 179 U. S., 141. 



I 



TTAVIGABLE WATERS II D 1. Y61 

tion or interfere with the improvement.^ R. 51, 609, Mar.^ 1887; 
P. 64, 477, Aug., 1892; G. 13680, Nov. 25, 1902. 

II D 1 a. Where a railroad company, wliich, as riparian pro- 

Erietor, owned the hmd upon wliich was located a revetment of the 
ank of a navigable stream (constructed by the United States in the 
improvement of the navigation of the same), was authorized to rebuild 
the revetment, subject to the condition that the work should be so 
done and maintained as to fully subserve its purpose as a safe and 
secure revetment and protection to the channel oi the stream — held 
that the company, as riparian owner, was legally entitled to use the 
revetment so long as such use tUd not impair its serviceableness or 
involve such an exclusive possession as would be in violation of the 
provisions of section 9 of the act of September 19, 1890 (26 Stat. 426), 
and that a failure on its part to perform the concUtion would not, 
fer se, divest it of such right of use, or empower the Secretary of War 
to enforce such performance bv revoldng the authority to rebuild 
the revetment. P. 64, 11, Feb.", 1894; C. 3931, Mar. 14, 1908. 

III. There is no general legislation of Congress authorizing the 
construction of bridges over streams or waterways, the navigable 
portions of which are not wholly ^vithin the limits of a single State, 
except as to bridges over the Ohio River.^ Such authority has 
hitherto been given, mth the exception stated, by special acts, which 
have uniformly contained provisions requiring that the plans of the 
bridges be submitted to the Secretary of War for approval before 
construction is commenced. But in the case of a stream or waterway 
whose navigable extent is wholly within the limits of a single State, 
Congress has provided by section 7 of tlie river and harbor act of 
September 19, 1890, as amended by section 3 of the corresponding act 
of July 13, 1892 (27 Stat. 88), by a negative pregnant with an affirm- 
ative, and by section 9 of the act of March 3, 1899, directly, that a 
bridge may be built thereover under authority of an act of the State 
legislature, provided the plans and location thereof are approved by the 
Secretary of War.^ C. 307, Sept., 1894; 1375, May, 1895; 1943, Jan., 

1 16 Op. Atty. Gen., 486. See, however, act of Congress of Mar. 3, 1899 (30 Sfeat. 
1152), and Scranton v. Wheeler, supra. 

2 See act of Congress approved Dec. 17, 1872 (17 Stat. 398), as amended by act 
approved Feb. 14, 1883 (22 Stat. 414). See also acts of Mar. 23, 1906 (34 Stat. 84), 
prescribing requirements to govern as to grants thereafter by C'ongress of authority for 
bridges; and act of June 21, 190G (34 Stat. 386, as amended by 36 Stat. 593) for similar 
legislation as to dams. 

^ See 20 Op. Atty. Gen., 488, and Lake Shore & Michigan Southern Ry. Co. v. Ohio, 
165 U. S., 365. The intention of Congress is more cleaiiy expressed in section 9 of 
the river and harbor act approved Mar. 3, 1899 (30 Stat. 1151), which, after making it 
unlawful to construct any "bridge, dam, dike, or causeway," over any navigable water 
of the United States until the consent of Congress thereto shall have been obtained, 
etc., specifically provides: "That such structures may be built under authority of the 
legislature of a State across rivers and other waterways the navigable portions of 
which lie wholly within the limits of a single State, provided the location and plana 
thereof are submitted to and approved by the Chief of Engineers and by the Secretary 
of War before construction is commenced." 

Under date of Sept. 25, 1899, the Secretary of War held that this section does not 
authorize the Secretary of War or the Chief of Engineers to appro ve_ the plans for a 
bridge or other structure which would be an obstruction to navigation liable to be 
proceeded against under the other sections of the act or of the statutes theretofore 
existing; that the intent of the section appears to be to commit to the States the deter- 
mination of the question whether or not there should be a bridge at any particular 
place over navigable waters wholly within the State, and to commit to the Secretary 
of War the protection of navigation against obstructions by such a bridge. 



762 NAVIGABLE WATERS III A. 

1896; 2U8, 2^70, July, 1896; 2596, Sept., 1896; 2677, Oct., 1896; 
3047, Mar., 1897; 3428, Aug., 1897. In the latter case the i^Lans of 
the bridge should be accompanied by proper evidence that the State 
has authorized its construction. 0. 1389, May, 1895; 12022, Feb. 
6, 1902; 12905, Sept. 29, 1902; 13652, Nov. 19, 1902. 

Ill A. Section 7 of the act of 1890 (26 Stat. 426), in leaving the 
matter of the authorization and construction of bridges over navi- 

§able waters wholly within States entirely to the jurisdiction of the 
tate, except in so far as to require the approval by the Secretary of 
War of the location and plan of the bridge, indicates that Congress 
did not desire to exercise any further control over the subject. So, 
upon an application for the approval by the Secretary of War of the 
plans of a bridge over the Harlem River, which is wholly witliin the 
State of New York, Jield that the fact of the unusual importance of 
this stream, and of its immediate connections with great interstate 
waterways and the sea, did not except it from the jurisdiction of the 
State under the statute or make necessary any special or additional 
legislation by Congress for the authorization or control of its system 
of bridges. P. 53, 354, May, 1892; 0. 13652, Nov. 19, 1902. 

Ill A 1. Section 9 of the act of March 3, 1899 (30 Stat. 1151) pro- 
vides affirmatively that bridges, inter alia, "may be built under 
authority of the legislature of the State across rivers and other water- 
ways the navigable portions of which lie wholly within the limits of a 
single State, provided that the location and plans thereof are sub- 
mitted to and approved by the Chief of Engineers and by the Secre- 
tary of War before construction is commenced." On the question 
raised with respect to the proposed construction by tjie Northern 
Pacific Railway of pile bridges across certain waterways of Puget 
Sound, as to whether the Chief of Engineers and the Secretary of War 
could legaUy decline to consider plans for these crossings, under 
authority of the State, Jield, that in view of the provisions of said section 
the necessity of crossing the waterways is a matter for the considera- 
tion of the State, subject only to the authority of the Chief of Engi- 
neers and the Secretary of War to approve only such plans and loca- 
tions as will prevent the structures from being an unreasonable 
obstruction to navigation. C. 25 44^, ^ug. 30, 1909. Held, however, 
that there would be no objection to the local engineer ofiicers suggest- 
ing to the railway company the advisability of changing the location 
of the railway in order to avoid the expense of constructing and 
maintaining drawbridges across these waterways. C. 25442, Sept. 1, 
1909. 

On the application of the city of Boston for the approval of the 
plans of a bridge across Fort Point Channel, in Boston, a navigable 
waterway of the United States lying whoUy witliin the State, said 
bridge to be erected under State authority, held that the jurisdiction 
of the Secretary of War and of the Chief of Engineers, under section 9 
of the act of March 3, 1899 (30 Stat. 1151), relates to the situation 
and dimensions of the piers, the length of the spans, width of the draw 
openings, etc., but does not include the power of determining whether 
or not a bridge should be built across the waterway at or near the 
location of the proposed bridge, tliat being a matter for the State 
to determine under the statute. ^ C. 17600, Feh. 27, 1905. 

1 See Lake Shore & Michigan Southern Railway Co. v. Ohio (165 U. S. 366, 368, 369); 
Cummings t). Chicago (168 U. S. 410); Montgomery v. Portland (190 U. S. 89). 



i 



NAVIGABLE WATEBS III A 2. 763 

III A 2. Held, under section 7 of the act of September 19, 1890, as 
amended by section 3, act of July 13, 1892, and by section 9, act of March 
3, 1899 (30 Stat. 1151), that the authority of a State for the erection 
of a bridge over navigable water within the State should be shown as 
a condition precedent to the ap])roval bv the Secretary of War. * 
P. 55, 61, and I40, Aug., 1892; 62, 9^, Oct., 1893; C. 7774, Mar. 8, 
1900; 12022, Feb. 9, 1902; 13652, Nov. 13, 1902; 18947, Dec. 13, 1905. 
The fact that the title to the soil under the water is vested in a munici- 
pality of the State does not affect the power of the State to grant 
such authority;, nor dispense with the necessity of its doing so. The 
title to the soil is distinct from the right of conservation. Though 
this title be vested in a town by the State, there remains in the latter 
by reason of its sovereignty, "a jus inihlicum of passage and repassage, 
with consequent power of conservation,"^ under wliich power it may 
concede the authority required by the statute. P. 62, 94, swpra; C. 
12081, Feb. 19, 1902; 16213, Apr. 25, 1904; 17329, Jan. 6, 1905. 

Ill A 2 a. Where the act of a State legislature required a draw, 
and the plan of the bridge submitted did not pro"\dde for one, lield, 
that there being no State authority for the construction of the bridge 
as proposed, the Secretary of War was without jurisdiction to approve 
the plans presented. C. 144^ > June, 1895. 

Similarly Tield, where ]dans were submitted for the construction of 
a dam or dams without locks, while the statutory authority rehed on 
required "a lock or system of locks." C. 26797, June 1, 1910. 

Ill A 2 b. As the object of this legislation is to protect the naviga- 
ble waters of the United States from unreasonable obstructions, Tield, 
that it should not be construed to authorize. the location and plan of a 
bridge wliich would have the effect of stopping navigation at the point 
where it is to be constructed. C. 5863, Feb., .1899. 

With reference, however, to the construction by the city of New 
York of an embankment or causeway to hojd a sewer outlet across a 
navigable creek in that city with a view to filling solid above the same, 
lield, that the citv having authority from the State for the purpose, the 
location and plans could be approved. C. 25047, June 5, 1909. 

Ill A 2 c. On the question of whether the Secretary of War had 
authority to approve the plans for a power dam across St. Joseph 
River, Ind., the naAagable portion of said river being in Michigan, 
Tield, that as the portion of the river to be affected by the structure 
is not navigable, no approval of the plans by the department was 
required. C. 11394, Oct. 18, 1901. Similarly held, with reference to 
power dams across the Missouri River in the section known as "The 
Rapids," near Great Falls, Mont. C. 25647, Dec. 21, 1909. 

Ill A 3. With reference to the question of the authority of the 
Cliief of Engineers and the Secretary of War to approve plans for 
rebuilding a bridge over the Taunton River, a stream lying wholly 
within the limits of the State of Massachusetts, under State authority 
given in 1864, Tield that the right originally given to construct the 
bridge included the right to maintain it, i. e., to repair or rebuild it; ' 

» See L. S. & M. S. R. Co. v. Ohio. 165 U. S., 365, and 20 Op. Atty. Gen., 488. 

2 6 Op. Atty. Gen., 172, 178. 

* Rogers Sand Co. v. Pittsburgh, Fort Wayne & Chicago R. R. Co. (139 Fed. Rep., 7); 
Hamilton 1;. Pittsburgh, etc., Ry. Co. (119 U. S., 281); Central Trust Co. v. Wabash, 
St. Louifl 6l Pacific R. R. Co. (32 Fed. Rep., 666). 



764 NAVIGABLE WATERS III B 1. 

and that as the act provided for a draw of "not less" that 60 feet in 
width, implying that in case of future reconstruction a greater width 
might be required, the Secretary of War and the Chief of Engineers, 
in the exercise of the powers conferred on them, in passing upon the 
plans could require such changes in the location and structural rela- 
tions of tlie bridge as might seem to them best calculated to secure 
the free and unobstructed navigation of the river. C. 189^7, Dec. 
21,1905. 

Ill B 1 . Where the special act does not require that a plan of the 
bridge shall be approved by the Secretary of War, he will preferably 
not give his approval to any plan, since if he did so he might perhaps 
commit the Government to the sanction of a bridge which might prove 
to be an obstruction to navigation. P. 25, 96, June, 1888. Where, 
however, it was proposed to rebuild a bridge, originally constructed 
over the Missouri River under a special act of Congress which did not 
require approval of the plans, lield, that as the later legislation in sec- 
tion 9 of the act of March 3, 1899 (30 Stat. 1150) , requires the approval 
of the plans by the Chief of Engineers and the Secretary of War, as 
well as the consent of Congress, approval of the plans for the rebuild- 
ing of the bridge would be required. C. 11500, Nov. 2, 1901. 

Ill B 2. Where a special act of Congress authorized the construc- 
tion of a bridge across the Mississippi River, upon obtaining approval 
by the Chief of Engineers and the Secretary of War of the location and 
plans of the same, and the applicant, after the piers had been com- 
pleted and the gi-ade fixed, applied for the approval of the location 
and plans, the approval was withheld on account of the objectionable 
location of the bridge; and thereafter an act was passed authorizing 
the applicant "to maintain and operate a bridge and approaches 
thereto now constructed," upon the proviso, inter alia, that the plans 
and specifications should be approved by the Secretary of War and 
the Chief of Engineers, otherwise the act to be null and void. On 
the question raised as to whether it was intended that the bridge 
should be allowed to stand as built, except for such minor changes as 
could readily be made, or to make the legalization of the bridge de- 
pend uj^on the judgment of the War Department that the location 
and plans would afford reasonable facilities for navigation, held, 
that the latter view would defeat the operation of the statute; and 
therefore that the approval contemplated by the act was of the plans 
and location of the existing bridge, with such aids to navigation and 
minor changes as might be deemed necessary in the interests of 
navigation. C. 26773, June 3, 1910. 

Ill B 3. Where a special statute (act of Congress), authorizing 
the erection of a bridge over navigable water by a railroad corporation 
named, provided that the bridge should not be commencea till the 
company should submit for approval by the Secreatry of War a certain 
plan and design with designated particulars and specifications, held, 
that the authority of the Secretary was thus restncted, and that he 
could not lawfully act and approve till the data described were sub- 
mitted. P. 30, 29, Jan., 1889; O. 163, May, 1890. 

The application for the approval must be accompanied by the par- 
ticulars specified in the act; otherwise the Secretary has no jurisdic- 
tion. Here the map and plan submitted failed to show the character 
of the stucture, as also the full shore line and the direction and 



NAVIGABLE WATERS III B 3 a. 765 

strength of the current, and gave only partial soundings. P. 43, 259, 
Oct., 1S90; C. 205, 208, and 209, Oct.,'l890. Plans are insufficient as a 
basis for action where they do not show what the statute requires.* 
C.9950, Mar. 7, 1901. Where the special act designates the kind of 
bridge authorized, details of the plan, etc., the Secretary of War is 
empowered to approve only such a bridge and such plans as comply 
witn the statute. If he gives his approval to others, his action will be 
ineffectual in law, and the bridge if completed will not be a legal 
structure.2 C. 229, Nov., 1890; 1477, June, 1895; 1532, July, 1895; 
8892, Sept. and Nov., 1900; 9950, Mar. 7, 1901; 11678, Dec. 2, 1901. 

Ill B 3 a. Where a special act authorizes the placing of a bridge 
across navigable water of the United States, by a railroad or other 
corporation, in addition to the plan of location and particulars re- 
quired by the statute, a standing "rule" of the War Department of 
July 31, 1886, requires certain other evidence to be submitted to the 
Secretary of War, to estabhsh the legal existence and authority of the 
corporation and its acceptance of the privileges and conditions granted 
and imposed by the act.^ R. 53, 379, Apr., 1887; 56, 574, 8ept., 1888. 
In particular cases still other evidence may be essential; as in a case 
where there has been a consohdation of two companies, when copies 
of the agreement and of the enactment authorizing the consolidation, 
etc., should also be submitted. R. 52, 199, May, 1887. 

Ill B 3 a (1). Under the rule of July 31, 1886, it has been decided 
by the Secretary of War that the copy of the charter or articles of 
incorporation of the company should be authenticated under the sig- 
nature and official seal of the Secretary of State, or other proper State 
official, in whose office the original is on file. Held that a printed copy 
of a copy, under the certificate of the secretary of the company and its 
corporate seal, was not sufficient evidence. R. 53, 32, 37, Sept. 1886. 
But the fact that the company has not furnished proper evidence of 
its incorporation does not affect the jurisdiction of the Secretary of 

' In practice, however, the location and plans of bridges have been approved, 
although the map of location failed to show all the details specified in the statute, 
the provisions of^the statute, in this respect, being treated as directory. 

2 See Hannibal & St. J. R. Co. v. Missomi River Packet Co., 125 U. S., 260, 263; 
Missouri River Packet Co. v. Hannibal & St. J. R. Co., 2 Fed. Rep., 285; Gildersleeve 
V. New York, N. H. & H. R, Co., 82 id., 763; Assante v. Charleston Bridge Co., 41 
id., 365. 

^ This rule is as follows : 

Rule to be observed token application is viade, pursuant to an act of Congress, for the 

approval by the Secretary of War of plans for a bridge, or a right ofv:ay, or other privilege. 

When an act of Congress granting a privilege to an individual or a corporation contains 
a clause requiring the approval of the Secretary of War to certain matters of detail, the 
grantee will be required to establish his identity; if the grant is to a corporation, there 
will be required a copy of its charter or articles of incorporation, and of the minutes of 
the organization of the company ; also extracts from the company minutes showing the 
names of the present officers of the company and the acceptance by the company of 
the provisions of the act of Congress, all properly authenticated. 

The identity of the grantee hjiving been established, and the provisions of the law 
having been complied with, the terms, condition.=i, requirements, etc., will be reduced 
to writing. This paper will be signed by the grantee in token of his acceptance of 
the conditions imposed, and will be approved by the Secretary of War, one copy thereof 
to be filed in the War Department and the other given the grantee. 

Wm. C. Endicott, 

Secretary of War. 

War Department, July 31, 1886, 



766 NAVIGABLE WATERS III B 5 a. 

War to approve pjans of a "bridge submitted, and the objection may be 
waived. G. U7, Oct., 1894. 

Ill B 3 a (2). Held that the statement of the secretary of the com- 
pany that it had accepted the provisions of the special act (or of the 
general act of July 5, 1884) (23 Stat. 133), was not proper evidence 
under the rule, but that there should be furnished a duly authenti- 
cated extract from the minutes of the company exhibiting the fact of 
acceptance. It should similarly be shown that the map of location 
and plan of bridge submitted have the approval and sanction of the 
company. R. 63, 12, 163, Sept. avd Oct., 1886. 

Ill B 3 b. Where a specific act required a bridge to have at least 
three channel spans "of not less than" 500 feet each in length, and it 
was proposed to require one of the spans to be 700 feet in length, held 
that the Secretary of War, on the recommendation of a board of engi- 
neer officers, could require a greater length of span, within reasonable 
limits, but could not properly require such a length of span as would 
be unreasonable for the locality or as would require an impossible 
structure. G. 5662, Jan. I4, 1899. 

Ill B 3 c. Wliere a special act of Congress authorized a "free 
wagon, foot and street railway bridge" across the Arkansas River at 
Little Rock, Ark., and the approved plans were changed during con- 
struction and the bridge thereby weakened so that it could not be 
safely used for street railway purposes, held, on the question of whether 
the Secretary of War could "insist upon the terms of ih.e charter being 
carried out," so that a street railway could be built to the military 
post, that the act did not confer on the Secretary of War any authority 
to so insist; that his only authority to require the bridge to be altered 
would be under section 18 of the river ana harbor act of March 3, 1899, 
but that as it did not appear that the bridge was an unreasonable 
obstruction to navigation, no action could be taken under this act; 
and that the only way the requirement could be enforced would be to 
submit the matter to Congress for its action under the reservation in 
the special act of the power to repeal it or require changes in the bridge 
at the expense of the owners. G. 2354, -^u^- 5 and 18, 1903. 

Ill B 4. It is well settled that an unrestricted grant of an authority 
to construct a railroad from one designated point to another includes 
by impUcation the authority to bridge navigable streams en route, 
where the road can not practicably or reasonably be constructed with- 
out crossing them.^ Thus, where, by an act of Congress of June 1, 
1886, authority was given to a railway company to construct and oper- 
ate a railway through the Indian Territory, from a point at or near 
Fort Smith to a point to be selected by the company on the nortliern 
boundary line of the Territory, held that the company would be author- 
ized to bridge the Arkansas River. P. 25, 92, June, 1888. Similarly 
held as to bridging the same river by the Kansas City, Pittsburg & 
Gulf Railway Co. under the act of Congress approved February 17, 
1893. C. 1510, July, 1895; 7774, June 16, 1900. 

Ill B 5. An act of May 14, 1888, in authorizing the Tennessee Mid- 
land Railway Co. to bridge the Tennessee River, provided "that this 
act shall be null and void if the actual construction of the bridge 

1 Gould on Waters, 3d ed., sec. 129; Fall River Iron Works Co. v. Old Colony & Fall 
River R. R. Co., 5 Allen, 221; U. P. R. R. Co. v. Hall, 91 U. S., 343. 



NAVIGABLE WATERS III B 5 a. 767 

herein authorized be not commenced witliin one year and completed 
within three years from the date of the approval of this act." In the 
absence of words making time an essential element of the performance, 
legislative acts of this character, although they maj^ designate a 
period within which a certain thing is to be done, are construed to be 
directory only and not mandatory as to time. But held here that the 
statute was mandatory and that the time specified was made of the 
essence of the grant, and therefore that the company, in applying for 
the approval by the Secretary of War of the location and plan, re- 
quired by the act to be approved by him, must show that the work 
had been commenced Avithin the time fixed. P. S3, 409, July, 1889; 
47, 99, May, 1891; C. 8736, Aug., 1900. 

Ill B 5 a. Wliere the act of Congress authorizing the construction 
of a bridge fixes the time for the completion thereof, the Secretary of 
War can not grant an extension of the time. In such a case the bridge 
should be completed as soon as possible and application made to Con- 
gress for the necessary extension. C. 250, Nov., 1894. 

Ill C. Authority granted by an act of Congress to a corporation or 
an individual to construct a bridge over navigable water of the United 
States is a francliise which can not be assigned without the permission 
of the grantor.^ And the Secretaiy of War can not in such a case 
lawfully entertain an application for the approval by him of the plans 
of a bridge made by a party or a corporation to which the right to 
buUd the bridge has been, without the authority of Congress, trans- 
ferred. R. 49, 618, Dec, 1885; P. 31,378, Apr., 1889; 32, 469, June, 
1889; C. 17979, Sept. 1, 1905; 18990, Dec. 29, 1905. Wliere a specific 
grant to build a bridge for a specific purpose— i. e. to complete its 
line and to accommodate the public — is made to a railroad corpora- 
tion by an act of Congi'ess conferring no power of substitution, new 
legislation is requisite to authorize the transfer of the franchise to 
another company. R. 49, 618, supra; 630, Jan., 1886; C. 1660, Aug., 
1895. 

Ill C 1. Where the plans were submitted and the approval of the 
Secretary was applied for, not by the corporation to wliich the au- 
thority to build the bridge had been granted by an act of Congress, 
but by a construction company, which, by contract, was to erect all 
the bridges for such corporation and to own them when completed, 
held, that the Secretary of War could not legally approve the applica- 
tion, the substitution of the company not having been authorized by 
Congress. P. 31, 378, Apr., 1889. 

Ill C 1 a. Wliere the authority for the bridge is given in terms 
to the company, "its successors and assigns," it is held that these 
words, being the ordinary words of limitation of an estate granted in 
perpetuity to a corporation, confer no right of transfer.^ There must 
still be specific authority of statute for the purpose, or the transfer, 
if assumed to be made, will be ineffectual and void. P. 31, 378, 
Apr., 1889; 34, 276, Aug., 1889; C. 17979, Sept. 1, 1905; 18890, Dec. 
6, 1905. 

Ill C 1 b. On the question whether plans for the reconstruction of 
a bridge submitted by the assignee of the company which received 

1 Branch v. Jesup, 106 U. S., 468; Thomas v. Raihoad Co., 101 U. S., 71. 

2 18 Op. Atty. Gen., 512. 



768 NAVIGABLE WATERS III D. 

the francliise from Congress could be approved, held that after the 
plans had been approved and the bridge built the franchise should be 
regarded as passing with the title to the property, and that plans for 
the renewal, reconstruction, or repair of the bridge will be accepted 
from the person or corporation in actual possession or control of the 
property — the presumption being that the possession or control of 
the party in occupation is legal.^ (J. 2^818,^ May 20, 1909. 

Ill D. The bridcre across the Mississippi River connecting the cities 
of Rock Island, 111., and Davenport, Iowa, belongs to the United 
States, which has complete control of the same, subject to the right of 
way of the Chicago, Rock Island & Pacific Railroad Co, (under the 
acts of June 27, 1866, and March 2, 1867.) The bridge is both a 
wagon and a railroad bridge. The railroad company has no interest 
in or authority over the wagon way or right to dictate what use shall 
be made of it. The wagon way is established for the use of the United 
States, not for that of the public, but has been opened to the public 
for passage and transportation subject to conditions, one of wliich is 
that certain railroad freights shall not be conveyed over it. Held, that 
neither the railroad company nor the commandmg officer of the arsenal 
was authorized to prevent the American Express Co. from hauling 
across between the two cities express matter not of the character 
precluded by such conditions. P. 34, 213, July, 1889. 

Ill E. The "Merchants' Bridge" over the Mississippi River at St. 
Louis, Mo., was constructed under an act of Congress wliich provided 
for the forfeiture of aU rights to maintain the bridge and of aU prop- 
erty therein in the event of a violation of the provisions against con- 
solidation or pooling of earnings, and that the Secretaiy of War ''shall 
take possession of the same in the name and for the Use of the United 
■States" (act of Sept. 10, 1888, 25 Stat. 474), held, on petition for such 
action, that although the statute requires the Secretary of War to act 
in an administrative way and "without legal proceedings," the pro- 
cedure should resemble that of a court of equity where remedy by 
mandamus or injunction is sought, and that the owners of the bridge 
should be called upon to show cause why the bridge should not be 
taken possession of as directed by the statute.^ 0. 15026, July 28, 
1903. 

Ill F. The street railway companies of Duluth, Minn., and Superior, 
Wis., applied for permission to construct a temporary structure 
of piles and pontoons across the St. Louis River between Minne- 
sota and Wisconsin, the structure to be put on and through the ice 
after navigation had entirely closed ana to be removed before the 
opening of navigation m the spring. Held, that the structure was not 
a bridge "within the meaning of the legislation on the subject and that 
the Secretary of War had authority to grant the permission requested. 
0. 705, Dec, 1894; Nov., 1895, and Nov., 1896. 

IV. The power expressly vested in the Secretary of War by section 4 
of the act of September 19, 1890 (26 Stat. 426), to determine whether 
a bridge is an obstruction to navigation, is of a judicial nature, not 

' See 21 Op. Atty. Gen., 293. 

* After a hearing the Secretary of War decided, June 5, 1905, that no occasion had 
arisen for the action of the Secretary of War under the statute. 



NAVIGABLE WATEKS IV A. 769 

ministerial merely.* The law makes him the agent of the United 
States for the purpose and vests him with a specific discretion. ^ Held^ 
that the power devolved pertained to him alone and could not legally 
be exercised by the Assistant Secretary of War.^ G. 135, May, 1890; 
14832, June 24, 1903. 

IVA. Under the act of August 11, 1888 (25 Stat. 400), it was 
advised — though the statute did not require it — that the Secretaiy of 
War, being constituted judge in the first instance, would properly give 
the corporation, etc., owning or controlling a bridge an opportunity 
to be Jieard, and not decide the qiiestion of obstruction or alteration 
Upon the report of the engineer officer alone. P. 35, 166, Sept., 1889. 
But it was also held that the notice was sufficiently specific Under the 
law, though it did not indicate how the proposed alteration was to be 
made ; that the Secretary of War, indeed, was not empowered to pre- 
scribe how the bridge should be altered, but that the responsibility for 
the proper alteration was wholly upon the corporation. P. 28, I4, 
Nov., 1888; 35, 265, Sept., 1889. The act of September 19, 1890, 
section 4, however, amended the provision as to notice in the act of 
August 11, 1888, section 9, by requiring that the notice to be given 
to the person or corporation owning or controlling a bridge which 
obstructs navigation to so alter it as to do away with the obstruction 
''shall specify the changes required to be made," such party being 
first given a reasonable opportunity to be heard." P. 49, 72, Sept., 
1891; G. 14832, June 24, 1902. 

Held, that under section 18 of the act of March 3, 1899 (30 Stat. 
1151), the jurisdiction to determine whether a bridge is or is not an 
Unreasonable obstruction to navigation is in the Secretary of War, 
but that the statute requires that in giving the notice "he shall 
specify the changes recommended by the Chief of Engineers that are 
required to be made," so that in respect of specific structural changes 
his duty is to require such modifications to be made as have been 
expressly recommended by the Chief of Engineers, and he has no 
authority to require other or additional structural changes than those 
so recommended. G. 22317, Apr. 15, 1909. 

» In U. S. V. Rider, 50 Fed. Rep., 406, it was held (by Sage, U. S. Dist. J.) that this 
section was unconstitutional in delegating to the Secretary of War "powers exclu- 
sively vested in Congress." See, however. Rider v. U. S., 178 U. S., 251 . At the trial 
of this case in the circuit court there was a division of opinion, but the presiding judge 
charged the jury that Congress had the constitutional power to confer upon the Sec- 
retary of War the authority to determine when a bridge, such as the one in question, 
was an unreasonable obstruction to navigation, and on writ of error to the Supreme 
Court the judgment was reversed, without deciding this question, on the ground 
Uiat the municipal officers controlling the bridge did not have public moneys which 
could lawfully^ be applied to the purpose and could not obtain euch moneys within 
the time specified in the notice. In an able and exhaustive opinion by Acting 
Attorney General Dickenson, dated Oct. 24, 1896, it was held that this act was not an 
unconsitutional delegation of legislative function; that Congress is not required to 
consider each case of alleged obstruction, but may generally define the offense and 
leave the facts to be determined by a court or special tribunal. 21 Opins. Atty. Gen., 
430, and authorities cited. 

2 Miller v. Mayor of New York, 109 U. S., 385, 393. 

3 See XII Comp.Dec, 483; ibid., 484. Where the notice purports to be from the 
Secretary of War it is sufficient although signed by the Assistant Secretary. Hannibal 
Bridge Co. v. U. S., 221 U. S., 194. 

93673°— 17 49 



770 NAVIGABLE WATERS IV A 1. 

IV A 1 . Before the notice to alter a bridge is given, the party 
owning or controlHng the same is entitled, under the act of 1890, sec- 
tion 4, to be heard on the changes specified in the notice as well as on 
the time in which they are to be made; and unless an opportunity 
for such hearing has been given, the party will not be liable to the 
penalties specified in section 5 of the said act. C. 798, Dec, 189^; 
1511, Nov., 1895; 14832, June 24, 1903. 

IV A 2. Eeld, under section 18 of the act of March 3, 1899, on the 
question of whether proceedings to alter a bridge could be begun 
prior to the time the bridge becomes an unreasonable obstruction to 
navigation, that under the statute this notice is to be given when the 
bridge ''is" an unreasonable obstruction. G. 14752, June 25, 1903. 
Where, therefore, a bridge is not an unreasonable obstruction to 
navigation, the Secretary of War can not initiate proceedings for its 
alteration on the ground that it will obstruct navigation at some 
future time, whether definite or indefinite. G. 22317, Aug. 28, 1908, 
and Apr. 15,1909. 

IV A 3. With respect to the alteration of a railway bridge across 
Pablo Creek, Fla., it appeared that the construction, under authority 
of the State of Florida, of a proposed canal to connect the waters of 
the creek with those of the St. Johns River, would have the effect of 
largely increasing commerce on the creek; held, with regard to the 
question of whether, in determining the character of the alterations, 
this increase of commerce on the creek could properly be considered, 
that such increase is to be treated as a part of the public commerce 
in respect to the right of public navigation on this creek; that any 
changes required to be made in the bridge should have in view this 
increase as well as the commerce now existing on the creek ; and that 
in authorizing bridges it is usual to take into consideration, not only 
existing commerce on the stream, but also the probable future require- 
ments of the same. G. 22317, Aug. 28, 1908. 

IV B. Especially in view of the fact that the giving of the notice 
to alter, under the act of 1890, section 4, is a proceeding preliminary 
and necessary to the fixing of criminal liability upon a failure to make 
the alteration, such notice should be strict and precise.^ It should set 
forth the situation and character of the bridge so as clearly to identify 
it, stating the name of the owner, etc., and specify fully the change or 
changes ^'required to be made" as to height, width of span or draw 
opening, etc. ; and it should appear from the notice, or in connection 
therewith, that the party has had a ''reasonable opportunity to be 
heard." P. 43, 431, Nov., 1890; G. 14832, June 24, 1903. 

IV C. Held, that the provision of the act of August 11, 1888 (25 
Stat. 400), as to the proceedings to be taken against a corporation 
refusing after due notice under that act to alter a bridge, was repealed 
by that of the act of September 19, 1890, and that such corporation 
could not be prosecuted without a new notice under the existing 
statute, followed by a failure to comply. An offender can not be 
punished under a penal act which has expired or been repealed prior 
to conviction.^ So, advised that proceedings initiated under the act 
of 1888 be commenced de novo. P. 43, 431, Nov., 1890; 49, 72, Sept., 

' "A purely statutory authority or ri^ht must be pursued in strict compliance with 
the terms of the statute." Bishop, Written Laws, sec. 119. 
^ Endlich, Interpretation of Statutes, 435. 



NAVIGABLE WATERS IV D. 771 

1891. Under the act of 1890, section 4, it is made the duty of the 
Secretary of War to initiate proceedings (by notifj^ing the proper dis- 
trict attorney) only in case of alterations, not made, of completed 
bridges; as to other obstructions, the duty to enforce the provisions 
of the act is devolved upon the ' ' officers and agents ' ' specified in sec- 
tion 11. P. 52, 343, Mar., 1892. 

IV D. Where, after notice to alter a bridge, as constituting an 
obstruction to navigation, the bridge company owning the same has 
failed, and the property has passed into the hands of a receiver, the 
proper method of procuring the alteration to be made is by motion 
in the proper court for an order requiring the receiver to make it. 
P. 37, 404, Jan., 1890. In such a case neither the owner nor the 
receiver can be made personally amenable for failure to alter. P. 60, 
118, June, 1893. A similar proceeding is to be pursued where a 
receiver has been appointed before notice or before the obstruction 
was developed. Thus where a bridge, on the line of a railroad, which 
had been placed under receivers, was discovered to be an obstruc- 
tion to navigation because of having no draw, advised that the Secre- 
tary of War apply to the Attorney General to have the case brought 
by the proper motion to the attention of the court by which the 
receivers were appointed, whose duty it then would be to order the 
receivers to make the alteration out of the income accruing from the 
operation of the road.^ And held that it would not be necessary to 
notify the receiver as such, since without the order of the court he 
could not legally incur the requisite expense for the purpose.^ P. 60, 
118, supra; 62,^55, Oct., 1893; 6 4, 399, Apr., 1894. 

IV E. Where the plans of a bridge had been approved, under 
section 7 of the act of September 19, 1890 (26 Stat. 454), without 
reserving the right to require changes, and as it was proposed, in view 
of the widening of the river under authority of Congress, to serve 
notice on the bridge owner to alter the same, held that sections 4 and 
5 of the same act vested the Secretary of War with, jurisdiction in 
the matter of requiring changes in any bridge ''now constructed or 
which may be hereafter constructed over any navigable waterway 
of the United States," so that such bridge, when altered, may not be 
"an unreasonable obstruction to the free navigation of such waters," 
and that under the combined operation of the two provisions the 
approval, although not reserving the right, was, nevertheless, sub- 
ject to such future alterations in the bridge as might be required to 
render navigation through it reasonably free, easy, and unob- 
structed.3 C. 27747, Feb. 13, 1911. 

IV F. Wliere a bridge has been reported an unreasonable obstruc- 
tion to navigation the Secretary of War may proceed under section 4 
of the act of September 19, 1890, to give the owners thereof a hearing 
with a view to notifying them to make the necessary alterations. But 
if in the meantime tlie owners waive hearing and notice and submit 
plans of alterations, the Secretary may approve the same; and his 
approval will in effect prescribe that the bridge be altered as indicated 
by the plans. This procedure has been followed ilD a number of cases. 
0. 1157, Mar., 1895; 24, 818, May 7, 1909. 

1 See U. S. V. St. Louis, A. & T. R. Co., 43 Fed. Rep., 414. 

2 Cowdrey v. Galveston, etc., R. Co., 93 U. S., 352. 

3 See opinion of the Attorney General dated June 9, 1911(29 Op., 139, 149). 



772 NAVIGABLE WATERS IV G. 

IV G. The acts of July 5, 1884, chapter 229, section 8, and August 
11, 1888, chapter 860, section 9, in providing for the removal of ob- 
structions to navigation caused by bridges, by requiring their altera- 
tion, etc., do not empower the Secretary of War to resort to military 
force to effect the purpose. They leave th e execution of their provisions 
to the law officers and the courts. They make it the duty of the 
Secretary of War, whenever the owners or responsible parties, after 
having been notified to do so, neglect to so alter a bridge as to abate 
the obstruction, to apprise the Attorney General, who is thereupon 
required to initiate the proceedings specified in the statute. P. 4^ 
85, July, 1890. 

IV H. The department of public works of the city of New York 
requested that the necessary steps be taken to permit that department 
to close the drawbridge across Harlem River at Madison Avenue for 
not to exceed two weeks to make needed repairs. Remarked that 
there is no statute of the United States which m terms empowers the 
Secretary of War to authorize the closing of a drawbridge during its 
repair, but recommended that the applicant be advised that no steps 
would be taken by the War Department in regard to the bridge as an 
obstruction to navigation during the time necessary for its repair. 
C 3299 June 1897 . 

v. Sekion 10 of the act of March 3, 1899 (30 Stat. 1151) makes it 
unlawful to construct any wharf, pier, etc., in any navigable water 
of the United States outside established harbor fines or where none 
have been established, except on plans recommended by the Chief of 
Engineers and authorized by the Secretary of War, etc. A permit 
under this statute confers on the grantee no right or franchise for the 
structure or interest in the shore or bed of the stream where it is to 
be built, but simply makes the authority required therein a condition 
precedent to the exercise of such right as the appHcant may have 
with respect to its effect on commerce and navigation.^ It can not 
in any sense Le regarded as vesting in the grantee any power to avoid 
or contravene State and local laws or individual privileges and immu- 
nities held by other parties thereunder. C. 8360, June, 1900; 28869, 
Aug. 23, 1911; 29359, Jan. 9, 1912. The jurisdiction to approve 
plans for structures in navigable waters under this section is not 
vested in the Secretary of War alone but in the Secretary of War and 
the Chief of Engineers, each of whom is charged in the statute with 
an independent exercise of discretion. Held, therefore, that a per- 
mit can not lawfully issue until the Chief of Engineers has approved 
or recommended the proposed works. C. 21193, Feb. 12, 1907. 

V A. Held that section 10 of the act of March 3, 1899 (30 Stat. 
1151), does not limit the discretion of the Secretary of War as to the 
character of the permit which he may issue under the authority 
conferred therein; and therefore the permission may be formal as to 
piers, wharves, etc., or by way of letter, as to booms, ferry cables, 
pipe lines, etc. {C. 1^890, June 30, 1903), or by way of waiver of ob- 
jections. C. 27899, Nov. 7, 1911. Further held, as to the takuig of 
water from the Rio Grande, that the permit may be revocable at will 
absolutely; may be Hmited either as to amount or by the condition 
of the river or the season of the year; and may be so worded as to 
impose notice, upon all subtakers or assignees, of the restrictions of 

1 Cummings v. Chicago, 188 U. S. 410. 



NAVIGABLE WATERS V B. 773 

the piermit. C. 27899, Nov. 7 and 8, 1911. Held, further, that the 
riparian owners' rights in regard to the use of the navigable stream 
whatever they may be under State law, are subject to the paramount 
authority of the United States to regulate the matter, so that any 
withdrawal may be prohibited which would injure the navigable 
capacity of the stream. C. 27899, Nov. 7 and 8, 1911. 

V B. Held, with reference to the question of whether the Secretary 
of War may legally authorize the Chief of "Engineers to permit the 
placing of log booms, fish weirs, and fish traps in navigable waters of 
the United States, that while it is well settled that discretionary- 
duties are not a proper subject of delegation, the action proposed 
should not be regarded as a delegation of discretionary duties, but 
as the approval by the Secretarj^ of War of such structures in advance, 
charging the Chief of Engineers with the duty of communicating to 
the applicants the fact that the Secretary of War has approved the 
placing of the structures in the navigable waters. C. 16336, May 13, 
1904. Similarly held, with reference to the extension of the authority 
to include routine appHcations for permits for excavating approaches 
to wharves; dredging to obtain sand or gravel for commercial pur- 
poses, and to deposit dredged materials under the usual conditions for 
such deposits; placing of wires, cables, or pipe lines; removal of logs, 
etc. (J. 16336, Nov. 19, 1910, and Feb. 18, 1911; 25049, July 5, 1910. 
Where, however, it was proposed to authorize the local enguieer 
officer to permit the ''driving of piles, or the establishment of other 
structures for mooring purposes, m Newport Harbor, mi such manner 
and at such points as, in his opinion, will not seriously interfere with 
navigation," held that the duty imposed on the Secretary of War by 
the statute is discretionary, not ministerial, and can not legally be 
delegated.! C. 7767, Mar. 7 and IS, 1900. 

V C. On the protest against granting permission to the Union Oil 
Co. for a pipe line in the Pacific Ocean at Santa Barbara, Cal., on the 
ground that a certain amount of oil would be spilled in transfer to 
the pipe line and would later reach shore, resulting in injury to the 
bathing facilities for wliich Santa Barbara is famous, held that sec- 
tion 10 of the act of March 3, 1899 (30 Stat. 1151), under authority 
of which the permit would be given, does not give to any applicant 
the franchise for the proposed structure but presupposes that the 
appUcant has a franchise for the same; and in order that the struc- 
ture may not unreasonably obstruct navigation, forbids its erection 
except upon plans to be approved by the Chief of Engineers and the 
Secretary of War; and that the jurisdiction conferred on the Chief of 
Engineers and the Secretary of War should be exercised solely with 
reference to the interests committed to their charge, i. e., the pro- 
tection of the navigable waters of the United States from unreasona- 
ble obstruction to commerce.^ C. 24527, Feh. 25, 1909. Held, how- 

1 Birdsall v. Clark et al. (73 N. Y., 76); Metchem on Public Officere, sec. 567; 
Throop's Public Officers, sec. 672. 

2 This view was concurred in by the Attorney General in 27 Op. Atty. Gen., 284. 
See also Montgomery v. Portland (190 U. S., 89), where it was held that "under 
existing enactments the right of private persons to erect structures in a navigable 
water of the United States that is entirely within the limits of a State is not complete 
and absolute without the concuiTent or joint assent of both the Federal Government 
and the State government," citing Cumminga v. City of Chicago (188 U. S., 410), 
and Willamette Bridge Co. v. Hatch (125 U. S., 1). See also North Shore Boom Co. 
V. Nicomen Boom Co. (212 U. S., 406), and Gring v. Ivea (222 U. S., 365). 



774 NAVIGABLE WATERS V C 1. 

ever, in the case of an application for permission to place an adver- 
tising sign off the coast at Atlantic City by an applicant who was not 
an owner of shore property, that the Secretary of War might properly 
require, as a condition precedent to granting the permission, a show- 
ing that the applicant was authorized to construct the same. C. 
26678, May 9, 1910. 

VC 1. With reference to the question of the jurisdiction of the 
Commissioners of the District of Columbia under the wharf act of 
March 3, 1899 (30 Stat. 1377), held that this jurisdiction is to be 
exercised subject to the authority conferred on the Secretary of War 
and the Chief of Engineers by the general legislation of the act of 
March 3, 1899, sui^ra, so that aU applications which contemplate 
work outside the harbor lines should be submitted for the recommen- 
dation of the Chief of Engineers and the authorization of the Secre- 
tary of War. C. 13900, May, 27, 1903.^ 

V D. Held that under section 3 of the river and harbor appropriation 
act of July 13, 1892 (27 Stat. 88), the Secretary of War was empow- 
ered to authorize the laying of a water main across the bed of the 
channel of any navigable water of the United States. P. 65, 352, 
June, 1894-. 

V D 1. Upon an apphcation by the City of Boston to the Secretary 
of War for a hcense to construct and maintain siphons for water pipes 
at Warren Bridge in the waters of Charles River, held that under the 
authority given him by the river and harbor act of 1888 to require , 
the removal of obstructions to free navigation, at bridges, the Secre- 
tary might properly grant such a license as a form of assent to the 
construction as not likely to interfere with navigation. P 29, 343, 
Jan., 1889. 

V D 2. The construction, without the authority of the Secretary of 
War, of vners in a harbor wliich is navigable water of the United 
States outside of established harbor lines (or where there are no har- 
bor lines estabhshed) is, under section 7, act of September 19, 1890 
(26 Stat. 454), unlawful when the same will be detrimental to naviga- 
tion. And whether or not the persons who constructed such weirs 
had any hcense from the town is immaterial. P. 53, J{S, Apr., 1892. 

V D 3. A fish weir so constructed as in a measure to obstruct the 
navigation of navigable waters can not be legally placed in such 
waters without the authority of the Secretary of War, who, by section 
7, act of September 19, 1890, is empowered to grant permission for 
the purpose. And so of a boom desired to be placed m a navigable 
river. P. 58, 347, Mar., 1893. 

V E. The act of August 17, 1894 (28 Stat. 338), provides (sec. 6) 
that ''it shaJQ not be lawful to place, discharge, or deposit, by any 
process or in any manner, ballast, refuse, dirt, * * * or any other 
matter of any kind other than that flowing from streets, sewers, and 
passing therefrom in a liquid state, in the waters of any harbor or 
river of the United States for the improvement of which money has 
b.een appropriated by Congress elsewhere than within the limits 
defined and permitted by the Secretaiy of War." And any and 
every such act is made a misdemeanor punishable by fine and impris- 
onment, etc. This statute prohibits the discharging or depositing of 
matter "in the waters of any harbor or river for the improvement of 
which money has been appropriated by Congress." As the statute is 



NAVIGABLE WATERS V E 1. 'TTS 

a penal one, and therefore subject to the rule of strict construction, 
this prohibition should not be construed to extend to the tributaries 
of such waters, notwithstanding the pollution of the tributaries would 
result in injury to said waters. C. 681, Oct., 1894; 21290, Nov. 14, 
1907. 

V E 1. Held that the prohibition, by section 6, act of September 
19, 1890 (26 Stat. 453), of the dumping of ballast could not legally 
be enforced in New York Harbor beyond the 3-mile limit.^ P. 51, 
154, Dec, 1891; C. 21290, Mar. I4, 1907. 

V E 2. Held, under section 3 of the act of July 13, 1892 (27 Stat. 88), 
that the duroping, in Lake Michigan opposite Chicago, of material from 
the Chicago Drainage Canal so as to cause shoaling, would be a viola- 
tion of the section, the locality being regarded as a ' ' roadstead " within 
fhe meaning of the statute; and that the Secretaiy of War could 
legally designate limits outside wliich dredgings might be deposited 
in the waters of the lake. C. 1537, July 24, 1895. 

V E 3. On the question raised as to the authority of the Secretaiy 
of War, under the act of June 29, 1888 (25 Stat. 209), as amended 
by the act of August 18, 1894 (28 Stat. 338), which forbids deposits, 
except from sewers in liquid state, in the tidal waters of the harbor 
of New York or its adjacent or tributary waters elsewhere than as 
designated by the supervisor of the haiT)or under the direction of 
the Secretaiy of War, to prevent the dumping of garbage where it 
would be liable to be washed ashore along the New Jersey coast, held 
that while police jurisdiction is ordinarily confined within the 3-mile 
Umit, many States assume a wider zone in defining offenses against 
their revenue laws, and it would seem that they might with equal 
propriety do so for the protection of their harbors; that by the above 
legislation Congress intended to conserve the sanitation of the harbor 
and of the adjacent coast; and that it would be competent for the 
supervisor of the harbor, with the approval of the Secretary of War, 
to designate a place of deposit beyond the 3-mile limit at a point 
sufficiently remote to insure not only the protection of the harbor 
against obstructions to navigation but also to conserve the sanitation 
of the adjacent coast. C. 20031, July 11, 1906. 

V F. No executive department of the (xovernment can give private 
parties the exclusive privilege of harvesting ice from ahy part of a 
navigable river of the United States. C. 1817, Nov., 1895. 

' V G. With reference to the threatened removal, under the authority 
of the State of Illinois, of certain State dams the removal of which 
would modify the capacity of the Illinois River, a. navigable water of 
the United States, held, on the question whether such threatened 
removal could be prevented, that under section 10 of the act of 
March 3, 1899 (30 Stat, 1151), such removal would be unlawful 
without the proper authorization of the Secretary of War, upon the 
favorable recommendation of the Chief of Engineers. C. 14235, Mar. 
25, 1903. 

V H. The diversion of water from the Niagara River above the 
falls was regulated, prior to the ratification of the treaty of January 
11, 1909 (36 Stat. pt. 2, p. 2448), by the act of June 29, 1906 (34 
Stat. 626), which was extended in its operation by joint resolution 
of March 3, 1909 (35 Stat. 1169). The act, as extended, expired by 

1 Compare the concurring opinion of the Attorney General in 20 Op. 293. 



776 NAVIGABLE WATERS VI. 

its own limitation June 29, 1911.^ Held that the treaty of January 
11, 1909 (supra), being of later date and of precisely equal obligatory 
force, replaces the provisions of the act of June 29, 1906, in all inci- 
dents in which it conflicts with said act ; that the licenses given under 
said act will expire, each in accordance with its terms, on June 29, 
1911, after which any action in respect to the issue of new licenses 
will have to be regulated by article 5 of said treatjr of January 11, 
1909; and in respect to the appointment of commissioners under the 
treaty that the requirements of said treaty were fully operative, and 
no further legislation would be necessary to warrant the appoint- 
ments, provision having been made by the act of June 25, 1910 (36 
Stat. 766), for the expenses of commission incurred under the treaty 
for the fiscal year ending June 30, 1911. C. 19094, Jan. 11, 1911. 

Held, under the act of June 29, 1906 (34 Stat. 626), forbidding the 
diversion of water from the Niagara River except as authorized 
therein, that in respect to the withdrawal of water hj the city of 
Lockport, N. Y., for domestic and sanitary purposes it was ques- 
tionable whether the proviso of said act, that the prohibition should 
not apply to diversion for ''sanitary or domestic purposes, or for 
navigation, the amount of which may be fixed from time to time by 
the Congress of the United States or hy the Secretary of War under 
its direction," the Secretary of War could not authorize such diversion 
except in pursuance of appropriate enabling legislation.^ Held, how- 
ever, that permission for the necessary intake could be given under 
the act of March 3, 1899, pending the obtaining of such legislation. 
C. 20607, Oct. 25, 1906. 

VI. On the general question of the proper location of harbor lines, 
lield, that they should be kept as near to the shore as the reasonable 
demands of navigation, present or prospective, may require, since 
when they are once established and reclamation work and structures 
have been started in rear of the same, it will be exceedingly difficult 
to afterwards move the lines farther toward the shore across the exist- 
ing structures. C. 28243, Apr. 29, 1911. 

VI A. HeU, under section 12 of the act of September 19, 1890 (26 
Stat. 455), authorizing the Secretary of War to establish harbor lines, 
that, in establishing a harbor line in the harbor of Bridgeport, Conn., 
he was authorized to prescribe regulations under which the littoral 
owners (who, by the laws of Connecticut, have a right of property in 
the flats on their fronts, and may wharf or dock out to the navigable 
channel so as to avail themselves of the use of it) should have their 
vested rights recognized and protected ; that while he might, for the 
protection of navigation, regulate their building out to the channel, 
he could not prohibit their doing so, or condemn, or deprive them of, 
their property. But held, that his authority for estabhshing a harbor 
line — which consists in locating an imaginary line beyond which 
wharves, etc., shall not be extended or deposits dumped — could be 
exercised only so far as necessary for the protection of the navigable 
channel as an interstate waterway, and not to protect mere local 
traffic. P. 52, 211, Feh., 1892; 51, 132, Dec, 1891. 

» Provisions of act of June 29, 1906, reenacted and extended to Mar. 1, 1912 (37 
Stat. 43). 

2 The Secretary of War held that the exception in the said act of June 29, 1906, 
referred "as well to authority previously as to that which may be conferred by subse- 
quent statute," and directed that the necessary permit be issued. 



NAVIGABLE WATERS VI A 1. 777 

VI A 1. With reference to the establishment of harbor lines in 
Sheepshead and Jamaica Bays, on question raised as to the legal 
authority of the United States to establish harbor lines in navigable 
waters below high-water mark at points where the same are not navi- 
gable in fact, held, that the authority of the United States to improve 
navigable waters is not limited to the parts of such waters which are 
navigable in fact, but extends to all parts of a na^dgable waterway, so 
that new channels may be dredged, or the erection of structures pre- 
vented which would interfere with the navigable waterway as a whole ; 
and that any title of a State or of a private grantee to submerged areas 
or to tide lands below high-water mark would be held subordinate to 
the authority of the United States to take and use the same, without 
compensation to the owners, for any purpose in aid of navigation; 
and that therefore there could be no question of the authority to 
approve harbor lines as recommended, if regarded as reasonably nec- 
essary for the preservation and protection of the harbor.^ C. 282^3, 
Apr. 29, 1911. Held, further, on the question whether the lines rec- 
ommended were reasonably necessary for the protection of the harbor, 
that the fact that the Unes had been recommended by the United 
States Harbor Line Board, after e^ctended inquiry, in connection with 
the application of the local dock commission for their establishment 
on the lines proposed, might properly be regarded as establishing this 
point. C. 28243, Apr. 29, 1911. 

VI A 2, Held, that the fact that harbor lines had been established 
in particular waters would not prevent the Secretary of War from re- 
establishing them along different Unes, where such action is regarded 
as essential to the preservation and Drotection of the harbor.^ C. 
4557, July 9, 1898; 5097, Oct. 8, 1898} 5238, Nov. 3, 1898. 

VI B. Held that the river and harbor act of August 11, 1888, sec- 
tion 12, did not make the approval of the Secretary of War essential 
to the estabhshment by a State of harbor hnes on its internal navi- 
gable waters, and therefore that, untU the United States exercises 
control in the manner pro^dded for by section 12 of said act, the State 
of Wisconsin was empowered, through the municipality of Duluth,to 
change and regulate the harbor lines of Duluth Harbor Avithout such 
approval.3 P. 33, 308, July, 1889. 

VII. The river and harbor act of June 14, 1880 (21 Stat. 180), makes 
it the duty of the Secretary of War, on being satisfied that a sunken 
vessel obstructs navigation, to give 30 days' notice, to all persons in- 
terested in the vessel or cargo, of his purpose to cause the same to 

1 See Philadelphia Co. v. Stimson (223 U. S., 605), where the court held, with ref- 
erence to the change by the Secretary of War in 1907 of the harbor lines in the back 
channel of the Ohio River at Brunot's Island so as to make the line coincide with the 
actual high-water mark, no improvements having been made since the line was orig- 
inally established iu 1895, that such change was within the authority of the Secretary 
of War; that the title to the soil under navigable waters was "subject to the authority 
of Congress under the Constitution of the United States"; and that "the exercise of 
this power could not be fettered by any grant made by the State of the soil which 
formed the bed of the river or by any authority conferred by the State for the creation 
of obstructions to its navigation." 

2 See Philadelphia Co. v. Stimson (223 U. S., 605), referred to in note to VI A 1, 
ante, in which the court said: "That officer (the Secretary of War) did not exhaust his 
authority in laying the lines first established in 1895, but was entitled to change them, 
as he did change them in 1907, in order more fully to preserve the river fi'om obstruc- 
tion." 

3 See County of Mobile v. Kimball, 102 U. S., 691; and Gring v. Ives, 222 U. S., 365. 



778 NAVIGABLE WATERS VTI A. 

be removed unless removed by the persons interested as soon there- 
after as practicable, before liimself proceeding to take measures for its 
removal under the act. If the removal be effected by the Secretary 
of War, the act requires that the vessel and cargo shall be sold at 
auction and the proceeds deposited in the Treasuiy, Under this 
legislation — ^especially in view of the fact that the act authorizes the 
taking possession of the property of private individuals and the dis- 
posing of it without compensation to the owners — held that the notice 
should be strictly given to all interested, the owners of the cargo as 
well as the vessel, unless indeed such notice were waived, in wliich 
case the waiver should be definite and express and joined in by all the 
interested parties. P. 35, 466, Oct., 1889; C. 13U4, Oct. 29, 1902. 

VII A. In view of the provisions of section 20 of the act of March 
3, 1899 (30 Stat. 1154), relating to the removal of sunken or grounded 
craft and vesting authority in the "Secretary of War or any agent of 
the United States to whom the Secretary of War may delegate proper 
authority," held that under the authority to delegate thus expressly 
conferred on the Secretary of War he could legally delegate to the 
officers of the Corps of Engineers in local charge the authority to take 
the necessary steps to remove or destroy any sunken craft which 
obstructs the navigation of any Government canal, lock, or navigable 
waterway. G. 17418, Jan. 20, 1905, Apr. 26, 1910. 

VII B. Where derelict articles — wrecks for example — are encoun- 
tered by officers of the Engineer Corps, as obstructions to the improve- 
ment of rivers, harbors, etc., required by Congress (in the exercise of its 
f)ower to regulate commerce) to be cleared and improved, it wiU be 
egal and proper for such officers to remove such obstructions in the 
most effectual manner. If the property is not actuaUy abandoned 
and is valuable, it will in general be expedient firet to give notice to 
the owners (personally if practicable, or, if not, through the news- 
papers) themselves to make the removal within a certain reasonable 
time.i R. 36, 569, July 1875; C. 10628, June 10, 1901. 

VII B 1. Held, with reference to the question of the authority of 
the War Department to permit the removal of sunken logs from the 
Neches River, Tex., under section 19 of the act of March 3, 1899, that 
this section is not understood to assert a property right in the United 
States to sunken wrecks, etc., except as such right may arise from the 
taking possession of abandoned property; that the statute recognizes 
the right of the owner of the obstruction to remove the same promptly; 
but that if he fails to do so it will be treated as abandoned and the 
property applied pro tanto to the payment of the cost of removal; 
and that there would be no legal objection to granting the permission 
appfied for in respect to such logs as were abandoned, or to entering 
into a contract for their removal, upon the provision that the logs 

> See sec. 4 of act of June 14, 1880 (1 Sup. R. S., 296), which provides for the 
removal of sunken wrecks and prescribes the giving of such notice. Also, later acts 
of Aug. 2, 1882 (id., 369); Sept. 19, 1890 (id., 802); and sec. 15 of act of Mar. 3, 1899 
(30 Stat. 1152). 

In an opinion of the Attorney General of May 24, 1877 (15 Opins., 284), it is held 
that the Secretary of War, where authorized by an appropriation act to improve 
the navigation of a navigable stream, may cause to be removed wrecks, not yet aban- 
doned but still private property, if he considers them obstructions to navigation. 
And see his later opinion of Aprir27, 1880 (16 Opins., 479) (C. 12081, Oct. 1, 1902, 17329, 
July 6, 1905), as to the authority of the United States to improve navigable rivers to 
the disregard of individual rights of property in the soil of the bed. 



NAVIGABLE WATEKS VII B 2. 779 

should become the propertv of the contractor. C. 14259, June 12, 
1906. 

VII B 2. T^Tiere a boat which had been left by its o\vner anchored 
or tied up was sunk by carelessness of the owner, on the question 
whether the burden of removal rests on the United States, upon the 
owner by whose carelessness it was sunk, or upon the city in the serv- 
ice of which it was held that, under the circumstances, the War 
Department should not remove the wreck, but that the burden of its 
removal rests on the owner. C. 10878, July 2^, 1901. 

VII B 3. On the application of a transportation company for the 
removal of the wreck of a steamship belonging to said company, 
which sank near the wharves of the company, accompanied by evi- 
dence of the abandonment of the same by the company and by the 
underwriters, held, with reference to the question of whether the com- 
pany or the underwriters could be required to remove the wreck, that 
the statute does not impose such a duty upon the owners or upon the 
underwriters of the vessel; that so long as it is not abandoned it 
makes it the duty of the owners to use due precaution to prevent its 
being a menace to navigation; but that it recognizes the right to 
abandon the wreck without further liability'- on account of the same; 
and that in the event of its abandonment, if it be such menace as the 
statute contemplates, it should be removed under the provisions of 
the statute. C. 18824, Nov. 14, 1905. 

VII C. Where a contract was about to be made with a civilian for 
the removal, from a harbor channel, of certain wrecks, not known to be 
fully abandoned (and directed by act of Congress to be caused to be 
removed by the Secretary of War), and it was proposed by the engi- 
neer officer in charge to stipulate in the contract that the wrecks when 
removed should belong to the contractor, held that this could not prop- 
erly be done, the United wStates having no property in such wrecks (the 
same not being Government vessels), but simply a right to remove 
them as constituting obstructions to commerce between the States. 
R. 43, 284, Apr., 1880. 

VII C 1. Section 19 of the river and harbor act of March 3, 1899 
(30 Stat. 1154), provides that "whenever the navigation of any 
river, lake * * * shall be obstructed or endangered by any 
sunken vessel * * * or other similar obstruction, and such ob- 
struction has existed for a longer period than thirty days * * * 
the sunken vessel * * * shall be subject to be broken up, re- 
moved, sold, or otherwise disposed of by the Secretary of War at his 
discretion without liability for any damage to the owners of the same." 
In carrying on the work of improving the Black River, Ark., in August, 
1909, a steamer which had been sunk a year before was removed by 
the (jovernment, subsequently the owner requested. the return of the 
machinery in the steamer. Recommended that the owner be informed 
that the Secretary of War would direct the machinery to be turned 
over to the owner on payment of $150, the cost of the removal. C. 
7077, Sept. 22, 1899. 

VII C 2. Under the provisions of section 20 of the act of March 
3, 1899 (30 Stat. 1154), an agreement was made for the removal from 
the channel between Lakes Superior and Huron of the steamer 
John B. Ketcham, 2d, which sank in the channel completely obstruct- 
ing navigation, the contract calling for the swinging of the vessel free 



780 NAVIGABLE WATERS VTI D. 

from the channel. Upon the completion of this work the wrecking 
company raised the vessel for the owners and took it to Port Huron, 
Mich., for the stipulated consideration, and certain expenses were 
incurred for repairs to the vessel. Upon the demand of the wrecking 
company for the payment of the agreed price for services rendered 
in clearing the channel, it was advised that payment would be made 
if the vessel was turned over to the Engineer Department to be pro- 
ceeded against under the statute. Held that as the services in 
raising the vessel and the expenses of the necessary repairs were 
incurred in saving the vessel for the benefit of all interests, they 
shoum be regarded as having the priority over the claim of the Gov- 
ernment under the statute for swinging her free from the channel, by 
analogy to the rule that "bottomry bonds take priority in the inverse 
order of their execution,"^ and that as the summaiy remedy given 
by the statute requires the entire proceeds to be turned over to the 
Government, instead of resorting to this remedy proceedings in 
admiralty should be taken to enforce the lien of the Government, in 
which proceedings the priority of the respective liens could be deter- 
mined; and advised that payment be not made until the vessel shall 
have been returned to the United States and suit instituted by the 
Department of Justice.^ C. 28032, Jan. 10 and Mar. 23, 1911. 
Held, also, in regard to the contention that the statute was uncon- 
stitutional because it requires the entire proceeds to be turned over 
to the Government regardless of whether they exceed the amount 
expended by the Government, that this procedure is to be resorted 
to only if the owners decline to take the vessel, upon satisfying the 
lien of the Government, and that by so declining the owners should 
be regarded as electing to abandon the vessel to the United States 
rather than pay the charges against her, C. 28032, Jan. 10, 1911. 
Held, further, after the vessel had been sold in admiralty proceedings 
in Canada, on notice to the United States, without bringing sufficient 
to satisfy the claim of the Government after the payment of liens 
entitled to priority that the further retention of the contract price 
for swinging the vessel free from the channel would not be justified, 
but that interest thereon should not be paid.^ C. 28032, Oct. 30, 1911. 
VII D. On the application of a transportation company for the 
removal of the wreck of a steamship of said company, under the act 
of March 3, 1899 (30 Stat. 1154), and it appearing that the wreck was 
not located where it was a menace to general navigation, but was 
simply an obstruction to the approach to the wharves of said com- 
pany, requiring greater care in approacliing the same, held that the 
Secretary of War might properly decide that the wreck was not such 
a one as it was incumbent upon the department to remove under the 
statute in question, so that if its removal was required in the inter- 

i36Cyc.,201. 

2 These views were concurred in by the Attorney General in his opinion dated Feb. 
28, 1911. 

^ In an opinion of the Attorney General, dated Nov. 22, 1911, it was held that under 
the facts, as they then appeared, it was no longer proper to require the wrecking com- 
pany, as a condition precedent to the payment of the contract price, to bring the 
vessel within the jurisdiction of the United States, and that the contract price should 
be paid, but that the statute under which the claim arose made no provision for the 
payment of interest. 



NAVIGABLE WATEES VIII, 781 

ests of the applicant the expense should be borne by it. C. 18824, 
Nov. 14, 1005. 

VIII. The river and harbor act of Aug. 18, 1894 (28 Stat. 338), 
section 4, makes it the duty of the Secretary of War to prescribe 
rules and regulations for the use and navigation of all '^ canals and 
similar works of navigation," owned, operated, or maintained by the 
United States, etc., and also makes the violation of any of these 
regrdations a misdemeanor punishable in the proper United States 
court. Held that tliis section does not apply in general to natural 
waterways, though their navigability has been improved and is 
being maintained bv the Government. C. 4^4i Oct., 1894; 1047, 
Mar., 1895; 2919, Feb., 1897; 3449, Aug., 1897; 12683, June 3, 1902. 

IX. Bj legislation prior to 1890, Congress had exercised some 
control over the subject of obstructions to navigation, principally 
with reference to bridges over navigable strearrife. But b}^ tTie river 
and harbor appropriation act of September 19, 1890 (26 Stat. 454), 
a general authority over the subject was assumed,* and it was enacted 
in section 10, as follows: "That the creation of any obstruction, not 
affirmatively authorized by law, to the navigable capactiy of any 
waters, in respect of which the United States has jurisdiction is 
hereby prohibited." The act does not make it the duty of the Secre- 
tary of War to enforce this provision in all cases, but, in sections 4, 6, 
7, 8, and 12, it invests him with specific authority with regard to cer- 
tain kinds of obstructions, as, to take precautions against obstruc- 
tion by bridges and to approve the location of bridges, etc.; to give 
permits for making deposits of substances or materials in navigable 
waters; to permit the erection of wharves, dams, breakwaters, and 
the like; to break up and remove wrecks, etc.; and to cause the 
establishing of harbor lines under regulations prescribed by him. 
But the prosecution and punishment of individuals creating obstruc- 
tions without proper permit or authority of law is left by the act to 
the law officers and the courts. P. 63, 365, Feb., 1894. 

IX A. There is no law authorizing the Secretary of War to cause 
obstructions to be removed from navigable waters, except as he may 
direct his subordinates, charged with river or harbor improvement, 
etc., to remove them where appropriations exist for the purpose. The 
act of September 19, 1890 (26 Stat. 454), makes it unIa^vful to place 
obstructions in navigable w^aters without the permission of the Secre- 
tray of War, but when the law is violated it is not for the Secretary 
to initiate proceedings but for the legal and judicial authorities under 
sections 10 and 11 of the act, to take action by prosecution and 
injunction. P. 52, 343, Mar., 1892; 63, 365, Feb., 1894. 

IX A 1. Under the provisions of section 10 of the act of September 
19, 1890, it becomes not only unlawful but a criminal act to obstruct 
the navigation of navigable waters of the United States. Thus, where 
a railroad company, under color of authority from certain State offi- 
cials, proceeded to close for a month, pending the repairing of one of 
its bridges, the passage up and down an interstate navigable stream, 
so that in fact the United States was prevented from transporting 
upon the same a gun carriage manufactured within the State for the 

' See eections 9 to 20, inclusive, of the river and harbor act of Mar. 3, 1899 (30 Stat. 
]151), for existing statutes on the subject. 



782 NAVrCABLE WATERS IX A 2. 

Government, held that the assumption of jurisdiction over such 
waters by the United States through the legislation of Congress had 
displacedf the jurisdiction previously exercised by the State to 
authorize such obstructions; and that under this legislation the river 
was a public highway, open, not only to the United States for public 
purposes, but to all private individuals whatsoever, and could not 
lawfully be closed or interrupted ; and advised that the proper United 
States district attorney be communicated "with, with a view to the 
initiation of proceedings under section 11 of the act. P. 64, 210, 
Mar., 1894. 

IX A 2. The act of June 23, 1910 (36 Stat. 593), makes it unlawful 
to dump refuse material in Lake Michigan opposite Cook County at 
any point within 8 miles of the shore, except under certain condi- 
tions; but imposes no duty on the Engineer Department with respect 
to marking the 8-mile limit nor with respect to the enforcement of the 
statute. On the question as to whether the expense of marking, 
placing; and "maintaining buoys, including patrolling, could properly 
be charged to river ancl harbor appropriations, held that the act being 
penal in its nature, its provisions are supposed to be enforced, like 
those of other penal statutes of the Umted States, by the matter 
being brought to the attention of the proper United States attorney 
and the offender brought to trial for violation of the statute; and 
that no appropriation under the control of the Engineer Department 
could be applied to the purposes in question. C. 27101, Aug. 3, 1910. 

IX B. With reference to the question of the right of the Secretary 
of War to confer on certain officers of the Charlestown Navy Yard 
the authority to make arrests, etc., under section 17 of the river and 
harbor act of March 3, 1899 (30 Stat. 1152), for violations of sections 
14 and 15 of that act, held that the statute confers on certain officers 
the authority to swear out processes and make arrests but does not 
empower thj Secretary of War to authorize arrests by other officials; 
and that the general duty of enforcing the law is in the Department 
of Justice — the statute expressly making it the duty of United States 
attorneys to vigorously prosecute all offenders against the law when- 
ever requested to do so by the Secretary of War or by any of the offi- 
cials authorized to make arrests. C. 15182, Aug. 29, 1903. 

IX C. Held, that under the acts appropriating money for the 
improvement of the Columbia River, to be expended under the 
direction of the Secretary of War, the Secretary, while authorized 
to make regulations for the prosecution and protection of the works 
of improvement, was not empowered to require, by such regulations, 
the removal of fish traps and pound nets as obstructions to naviga- 
tion; that it was not wdthin the province of the Secretary of War 
to determine what is or what may become an obstruction to naviga- 
tion, and cause to be removed the one or proliibited the other by a 
mere order or regulation, in the absence of authoritv given by specific 
legislation of Congress. R. 63, 257, Apr., 1887. 

X A. When Congress, in the exercise of its exclusive power to 
direct how the public money shall be employed, has appropriated a 
certain sum, to be devoted, without exceptions or provisos, to a 
certain specific internal improvement, it devolves upon the executive 
department of the Government, charged as it is with the execution 
of the laws enacted by the legislative, to proceed with the work 



NAVIGABLE WATERS X A 1. 783 

under the appropriation, without entertaining any question as to 
the expediency oi the expenditure. Thus where Congress had made 
in general terms an appropriation of a specific amount for improA^ng 
a certain river, advised that it was for the officer charged with the 
improvement simply to do the work, \\dthout delajdng to raise or 
consider questions or claims of title to the land, etc., to be affected 
by the improvement; such matters being quite beyond the province 
01 an executive official under the circumstances.^ R. Jf.3, 101, Nov., 
1879; C. 2I8I4, July 23, 1907; 22703, Feb. 5, 1908. 

X A 1. Held, that the permissive words in the river and harbor 
act of June 13, 1902 (32 Stat. 342), viz, that the ''Secretary of War 
is authorized to cause to be built a suitable dregde for use in the 
improvement of the harbors upon Lake Erie," like the corresponding 
expressions ''it shall be la%vfur" or *'is authorized and empowered," 
should be regarded as equivalent to the word "may," and as man- 
datory in character, and that the authority so conferred should be 
carried into effect. 2 C. 2473, Jan. 2^ 1903. Similarly held, \vith 
respect to the proviso in the appropriation made bv the act of March 
2, 1907 (34 Stat. 1087), for the improvement of Mobile Harbor, 
"that so much as may be necessary may be expended in the con- 
struction of a dredge for said harbor," that it is a peculiarity of 
river and harbor legislation that the duties are imposed b}'" the use 
of the word "may" which, in the majority of such enactments, has 
a mandatory signification. C. 24027, Oct. 30, 1908. Similarly held, 
with respect to the provision in the amendatory act of May 28, 1908 
(35 Stat. 430), that the sum so set apart, except the amount expended 
for the plans of the dredge, "mav" be used in the work of dredging. 
C. 24027, Oct. 30, 1908. Held, however, that in the last clause of 
the act of 1908, "that the Secretary of War may, in his discretion, 
enter into contracts for the work," the context clearly deprives the 
word "may" of the obligatory character. C. 24027, Oct. 30, 1908. 

X A 2. Section 13 of the river and harbor act of August 18, 1894 
(28 Stat. 338), provides "that after the regular or formal report on 
any examination, survey, project, or work under way or proposed 
is submitted, no supplemental or additional report or estimate for 
the same fiscal year shall be made unless ordered by a resolution of 
Congress." To construe tliis language strictly would lead to two 
conclusions which it is improbable Congress intended, to wit: (1) 
Additional estimates for work which has become necessary in order 
to preserve that already done or being done during the fiscal year, 
can not be made. (2) The Senate and House of Representatives, 
acting separately, can not call for information on this subject. Held, 
therefore, that the section should be liberally construed as follows: 
That it prohibits additional estimates (unless ordered by resolution 
of Congress), extending the work already estimated for; and that the 
"resolution of Congress" referred to includes separate resolutions of 
either House. C. 2148, Mar., 1896. 

X A 3. Where authority was given, by a proviso in the appropria- 
tion for a channel through Sabine Lake, to select a longer route near 
the west shore and to connect the same wdth the Port Arthur Canal, 

' See 24 Op. Atty. Gen., 594. 

2 This view was concurred in by the Attorney General in his opinion dated Feb. 
28, 1903 (24 Op. Atty. Gen., 594.) 



784 NAVIGABLE WATERS X B 1. 

upon a further proviso for the free navigation of said canal, lield, 
that as the office of a proviso is not to enlarge or extend the act of 
which it is a part but rather to limit or restrict the language em- 
ployed/ the route in question could not be selected in the event of 
the refusal of the owners of said canal to allow the free navigation 
thereof. C. 13394, Oct. 7, 1902. 

X B 1 . Work done by the United States upon rivers and harbors 
is civil work. The fact that military officers are assigned to dutv 
on it does not make it a branch of the military service. The work 
itself does not relate to military matters or in any way affect the 
military establishment of the Government. It is paid for, not out of 
any appropriation for the military establishment, but out of a sepa- 
rate civil appropriation for the improvement of rivers and harbors. 
Held, therefore, that paragraph 808, Army Regulations of 1889, was 
not applicable to civilians employed in the improvements of rivers 
and harbors, said civilians not being "in the employ of any branch 
of the military service." C.,147, Aug., 1894. It was the intention, 
however, to have paragraph 569, Army Regulations of 1895 (see 648 
of 1901), apply to river and harbor work; but whether it applies or 
not the Secretary of War has discretionary power to require with 
reference thereto the reports mentioned in the regulations. C. 3418, 
Aug., 1897. 

X B 1 a. Held with reference to the item in the river and harbor 
act of February 27, 1911 (36 Stat. 957), increasing the Corps of 
Engineers and providing that "officers of the Corps of Engineers, 
when on duty under the Chief of Engineers, connected solely with 
the work of river and harbor improvements, may, while so employed, 
be paid their pay and commutation of quarters from the appropria- 
tion for the work or works upon which employed" ; that the proviso 
in question, being connected with permanent legislation increasing the 
Corps of Engineers, should be regarded as of like permanent charac- 
ter; and that the use of the permissive word "may" in legislation 
of this character should be considered as mandatory, so that where an 
officer is so engaged he not only may but must be paid from the ap- 
propriation for the work on which he is employed.^ C. 28632, June 
27, 1911. 

X B 2. On the question of whether the appropriation in the river 
and harbor act of June 3, 1896, for the investigation of the rights of 
the United States in connection with the improvement of the Fox 
and Wisconsin Rivers to be made under the chrection of the Secretary 
of War, should be disbursed by the Chief of Engineers, lield that as 
the item occurs along with other appropriations in the same act the 
expenditure of which is under the direction of the Chief of Engineers, 
although it makes no provision on the subject, it should be disbursed 
by the Engineer Department under the general provision applying 
to other appropriations made by the same act; and further, that it 
was clearly competent for the Secretary of War to direct that the 
appropriation be disbursed by the Engineer Department. C. 3900, 
Feb. 25, 1898. 

* Sutherland on Statutory Construction, p. 299. 

^ This view was concurred in by the comptroller in his decision dated July 24, 1911 
(XVIII Comp. Dec, 45). 



NAVIGABLE WATEKS X C. 785 

X C. Section 3 of the river and harbor act of August 11, 1888 
(25 Stat. 423), made it the duty of the Secretary of War to apply the 
money appropriated by the act "in carrying on the various works 
by contract or otherwise as may be most economical ai^l advantageous 
to the Government. " Held that he was thus empowered to authorize 
the engiMer officer in charge of the work for the protection of the 
levees at^ew Orleans to liire without formal contract, a steamboat 
for transporting material, and for other uses in connection with such 
work. P. 4.0, 95, Mar., 1890; C. 15^88^ Nov. 9, 1903. 

X C 1. A contractor engaged upon river and harbor work for 
the Government may obstruct navigation to the extent necessary to 
do his work, if such obstruction can not reasonably be avoided. He 
is, however, liable both civilly and criminally for an unauthorized 
obstruction, and the Secretary of War is without authority to relieve 
him from such liability. C. 3839, Feb., 1898. 

X D. Section 3736, R. S., provides that ''no land shall be pur- 
chased on account of the United States, except under a law authoriz- 
ing such purchase." By the act of April 24, 1888 (25 Stat. 94), the 
Secretary of War was authorized to "cause proceedings to be insti- 
tuted, in the name of the United States, in any court having jurisdic- 
tion of such proceedings for the acquirement by condemnation of 
any land, right of way, or material needed to enable him to maintain, 
operate, or prosecute works for the improvement of rivers and harbors 
for which provision has been made dj law." Further provision as 
to the method of condemning lands for public use was made by the 
act of August 1, 1888 (25 Stat. 357). The act of April 24, 1888, suj)ra, 
provided "that when the owner of such land, right of way, or material 
shall fix a price for the same, which in the opinion of the Secretary 
of War shall be reasonable, he may purchase the same at such price 
without further delay; and provided further that the Secretary of 
War is hereby authorized to accept donations of lands or materials 
required for the maintenance or prosecution of such works." The 
authority to condemn, purchase, or "accept donations" applies 
only to works "for which provision has been made by law." Held, 
therefore, that in the absence of an appropriation for the works or 
express authority from Congress, the Secretary of War is precluded 
by section 3736, R. S., from acquiring lands for river and harbor 
improvements; the word "purchase" in this statute ha\ang been con- 
strued in its legal sense as including every mode of acquiring land 
other than by descent.^ C. 3896, Feb., 1898; 2111, Mar. 12, 1896; 
11024, ^ug. 10, 1901; 13586, Nov. 20, 24, 25, 1902. 

X D 1 . The owner of lands flooded by dams constructed in im- 
proving navigation is entitled to compensation for damages sustained 
by such flooding.^ Held, that the Secretary of War has authority 
under the act of April 24, 1888 (25 Stat. 94), to purchase lands flooded 
by dams constructed in river and harbor improvements, or the right 
to flood the same, and where springs are located on such lands this 

1 See 7 Ops. Atty. Gen., 114, 121; Ex parte Hebard, 4 Dillon, 384. A conveyance 
of lands to the United States is, under this statute, void and inoperative unless the 
purchase is authorized by Congress. U. S. v. Tichenor, 12 Fed. Rep., 415; VI Comp. 
Dec. 791. 

^ Gould on Waters, 2d edition, sec. 243, and authorities cited; Hackstack v. Keshena 
Imp. Co., 66 Wis. 439; Am. & Eng. Ency. of Law (1st edition), vol. 16, p. 265, note 1, 

93673°— 17 50 



786 NAVIGABLE WATERS X D 1 a. 

fact may properly be considered in determining the amount to be 
paid. C. 1074, Mar., 1895. 

X D 1 a. Where the State of Washington, by act of February 8, 
1901 (Laws of Washington, 1901, p. 7), granted to the United States 
the right to raise the level of Salmon Bay, inter alia, and subse- 
quently disposed of the shore lands to the riparian owners, who served 
notices of the revocation of the grant and requested their acknow- 
ledgment, upon the theory that it amounted merely to a revocable 
license, lield, that under the grant the Government acquired a per- 
petual easement or servitude for the purposes specined therein, 
and that the subsequent grant of the shore lands to the present 
owners would be subject to the same, but that there could be no 
objection to acknowledging the receipt of the notices as requested. 
C. 26425, Mar. 26, 1910; 20959, Mar. 2 and May 17, 1911. 

X D 2. The Secretary of War is authorized to acquire, by pur- 
chase or condemnation, land, right of way, or material, needed to 
maintain, operate, or prosecute works for the improvement of rivers 
and harbors, when provision for the same has been made hj law. 
C. 301, Sept., 1894. But he can not lease land unless appropriation 
has been made to pay the rental thereof. C. 195, Aug., 1894- 

XD 3. Held, that it was not within the constitutional power of 
Congress to enact that the United States should not be liable for 
damages caused by the prosecution of a public work, and therefore 
that the Government could not, through a provision of law to that 
effect, escape liability for losses incurred by third parties from flowage 
caused by a harbor improvement. If it would be liable to them in 
the absence of such law, a statute providing that it should not be 
liable would be unconstitutional as being an attempt to deprive 
them of a property right by legislation. F. 56, 478 and 4^-5, Dec, 
1892. 

X D 4. The owner of land occupied by a canal, constructed as an 
improvement under a river and harbor act, may, by the authority 
of the ruling of the Supreme Court in the leading case of United 
States V. Lee,^ maintain an action of ejectment or trespass against 
the ofl&cial representative of the United States in charge of the im- 
provement. P. 35, 191, Sept., 1889. 

X E. Held, that the work of constructing a levee near the mouth 
of the Mississippi River might legally be proceeded with under the 
appropriation available therefor, upon obtaining licenses from the 
owners of the land upon which the levee would rest, and that the pro- 
visions of section 355, R. S., have not been regarded as forbidding 
such improvements without acquiring title to the lands underlying 
the same. C. 13680, Nov. 25, 1902. 

X E 1 . With reference to the appropriation for the improvement 
of the Hudson River, under the act of June 25, 1910 (36 Stat. 635), 
which was conditioned upon the extinguishment by the State of New 
York of all power rights and privileges to be affected by the improve- 
ment, the State canal board passed a resolution formally abandoning 
the State lock and dam and authorizing their destruction, this action 
including the extinguishment of the power rights and privileges in 
question. Thereupon the Engineer Department incurred_ expenses 
and entered into a contract for dredging and rock excavation in the 
execution of the project authorized by Congress. After such action 

» 106 U. S., 196. And Bee the case of Stanley v. Schwalby, 147 U. S., 508; 162 id., 255. 



NAVIGABLE WATERS X F. 787 

the State canal board rescinded its former resolution, and the State 
authorities requested the amendment of the project accordingly. 
Held that the project was to be treated as an entirety and that unless 
the conditions of the appropriation were satisfied the War Depart- 
ment could not proceed with any part of the work of improvement; 
but questioned whether, the United States having once entered upon 
the work of improvement upon the faith of the former action of the 
canal board, it was competent for the State authorities to rescind 
such action.! C. 28390, May 22, 1911. 

X F. Section 5 of the river and harbor act of June 13, 1902 (32 Stat. 
373), provides: "That when any land * * * acquired for the 
improvement of rivers and harbors is no longer needed, * * * j^ 
may be sold in such manner as the Secretaiy of War may direct, and 
the proceeds credited to the appropriation for the work for which it 
was -purchased or acquired; * * * ." Held, with reference to the 
question of whether this statute could be regarded as authorizing the 
sale of land wliich had not been purchased or acquired through any 
appropriation for river and hai-bor improvements, but had been 
reserved from the public domain for such purpose, that while the 
word "purchase" mcludes, in its legal sense, eveiy method of 
acquisition other than by descent, it should, as here used, receive a 
more restricted construction as designating acquisition by voluntary 
sale, while the word "acquire" was intended to cover acquisition by 
donation or condemnation ; that the intent of Congress was to provide 
for the elimination of property which had become useless for the 
purpose for which procured, without diminisliing the provision for a 
particular improvement; but that as to lands wliich had simply been 
segregated from the pubUc domain, they should be returned to the 
Department of the Interior; and that a different construction from 
that above would place it in the power of the Executive indirectly to 

{)rovide for a particular improAcment by reservation and sale of public 
ands therefor. C. 12479, Mar. 1, 1905. 

X F 1. Section 5 of the river and harbor act of June 13, 1902 (32 
Stat. 373) provides: "That when any land * * * acquired for 
the improvement of rivers and harbors is no longer needed * * * 
it may be sold in such manner as the Secretary of War may direct^ 
Held that under this authority certain lands at Dam No. 5, Ohio 
River, not needed, might legally be sold. C. 13432, Oct. 21, 1902. 
Similarly held as to land acquired for Yuba River settUng basin. C. 
28349, May 9, 1911. Also held, in regard to the sale of certain land 
condemned for a cut-off in Mantua Creek, N. J., that under the broad 
authority conferred by this act the Secretary of War could legally 
convey tltie same by warranty deed ^ — the former owner claiming that 

1 In his opinion dated Juljr 3, 1911, the Attorney General held that the earlier reso- 
lution of the canal board might be regarded as "an extinguishment of the existing 
leases and a resumption of the surplus water created by the State lock and dam, 
although not as an abandonment of those structures; that this action was a substan- 
tial compliance with the conditions of the appropriation; that under the paramount 
control of the United States over the Hudson River the State lock and dam could be 
removed as an obstruction to navigation; and that the attempted rescinding of the 
earlier action, after it had been accepted and acted upon by the Federal Government, 
was inoperative to defeat the execution of the work authorized by Congress." 

* The Attorney General, by opinion dated Apr. 26, 1911, held that this statute givea 
authority "to adopt a form of deed best suited to the particular transaction being 
carried on;" that the United States acquired a fee simple title to the property in 

auestion; and that the Secretarv of War had authority to execute the form of warranty 
eed submitted. 



788 NAVIGABLE WATERS X F 2. 

the title of the United States was hmited to the use for which con- 
demned; and advised that such a deed be tendered to the highest 
bidder, and that should he refuse to complete the purchase the deposit 
be forfeited. C. 26^72, Mar., 1911; Apr. 21, 1911. 

X F 2. In view of the authority conferred on the Secretary of War 
by section 3 of the act of August 11, 1888 (25 Stat. 423), to apply the 
moneys appropriated for river and harbor improvements "by con- 
tract or otherwise as may be most economical and advantageous to 
the Government;" and of the authority conferred by section 5 of the 
act of June 13, 1902 (32 Stat. 373), to direct the transfer of river and 
harbor property from one project to another upon proper credits and 
debits, held that there would be no legal objection to authorizing the 
Chief of Engineers to permit the temporary transfer between projects 
upon such equitable adjustment of charges and credits as may be 
agreed upon by the local engineer officers concerned, C. 16202, Apr. 
20, 1904. Similarly held, with reference to authorizing the Chief of 
Engineers to permit the sale of unserviceable river and harbor prop- 
erty, under section 5 of the said act of June 13, 1902, where the 
amount does not exceed $500 and where there is no doubt as to the 
propriety of the sale, so that the exercise of the authority may be 
regarded as routine in its nature. C. 16336, Feb. 18, 1911. 

X F 3. Section 1241, R. S., prescribes that the President may cause 
to be sold any military stores which, upon proper inspection or sur- 
vey, appear to be damaged or unsuitable for the public service. Held 
that the term "military stores" does not include public property 
purchased in carrying out the civil works of river and harbor improve- 
ments. The regulations, however, with reference to property account- 
ability, as contained in the Army Regulations of 1895, were intended 
to cover all public property under the control of the Secretary of War, 
whether military stores or not. The regulations (and orders) relating 
to the inspection of unserviceable property with a view to its condem- 
nation apply, therefore, to public property used in river and harbor 
improvements. There is, however, no existing law which would pre- 
vent such modification of these regulations as would authorize the 
proper engineer officer to drop property, other than military stores, 
from his returns on his own certificate that its condition resulted from 
wear and tear in the service, that it was worthless and had been 
destro^^ed in his presence. C. 3419, Aug., 1897. 

X F 4. Section 5 of the river and harbor act of June 13, 1902 (32 
Stat. 373), provided that "when any land or other property which has 
been heretofore or may be hereafter purchased or acquired for the 
improvement of rivers and harbors is no longer needed, or is no longer 
serviceable, it may be sold in such manner as the Secretary of War 
may direct, and proceeds credited to the appropriation for the work 
for which it was purchased or acquired." In carrying on the work of 
improving the harbor at Mobile various sticks of timber and a number 
of sawed logs wliich had escaped from booms and rafts were recovered 
from the stream and many of them had been there for more than thirty 
days and were without marks that enabled their ownersliip to be 
determined. Held, that the material might properly be treated as 
abandoned and as belonging to the one recovering it; i. e., the United 
States, and as the material was acquired in prosecuting the work of 
improving the harbor, it might legally be used for that purpose, and 



NAVIGABLE WATERS X G. 789 

if it was found not to be needed or serviceable for such use it might 
be sold as provided by the statute. O. 15661, Dec. 18, 1903. 

X G. The Secretary of War may permit the use of land under his 
control by revocable license or by lease under the act of July 28, 
1892 (27 Stat. 321). C. 2/^1, Aug., 1849. On the question raised 
as to the authority of the Secretary of War to lease a frontage on the 
tidal canal in Oakland Harbor, Cal., to a bridge company owning the 
abutting property, and on protest against such lease as imposing a 
burden on commerce, held, that the protest was without merit, as it 
claimed a right in the abutting owner to appropriate a particular 
portion of the property of the United States for its own private 
business and to use the same without charge to the exclusion of 
others ; that if the lands are not now required for public use they may 
be leased under the act of July 28, 1892 (27 Stat. 321); and that if 
they are no longer needed they may be sold under section 5 of the act 
of June 13, 1902 (32 Stat. 373). G. 19015, Jan. 4, 1906. 

XI A. Held, that the Mississippi River Commission derived no 
authority from the statutes relating to its functions to make allot- 
ments ot the moneys appropriated by Congress for the improvements 
proposed. Its province is to indicate to Congress what improvements 
are needed and how much should be apfjropriated therefor. It has 
no authority to disburse money appropriated. An allotment made 
by it is to be treated by the Secretary of War as a recommendation 
only. The Secretary vaoij adopt the recommendation, but in the dis- 
bursement should not omit any of the works specially designated by 
Congress in the appropriation act. P. 4^, 187, Oct., 1890. 

XI A 1 . Held, that the maps prepared by the Mississippi commission, 
under appropriations by Congress, may legally be disposed of at the 
discretion of the commission; it being evidently intended by Con- 
gress that the information therein contained should be made public 
and circulated for the pubHc use and benefit. P. 38, 326, July, 1889. 

XI B. The duties, under the law, of the Missouri River Commission, 
composed partly of civihans, relate exclusively to certain work quite 
other than the establishing of harhor lines. It is therefore not, as a 
body, subject to the directions of the Secretary of War in the matter 
of establishing harbor lines, nor are the civihan members subject indi- 
vidually to his orders. Thus, wliile they may consent to establish 
such lines, it is preferable for the Secretary to cause such work to be 
done through engineer officers of the Army. P. 56, 218, Oct., 1892. 

XI C. Held, that the allowances for the traveHng expenses of the 
civihan members of the Mississippi and Missouri River Commissions 
were not regulated by any order of the War Department regulating 
the allowances of civil employees of the military establishment, but 
were such as are fixed by statute. They are not thus necessarily $4 
fer diem, since the statute law provides for the reimbursement of their 
actual necessary outlay, which may be more or lessthan this allowance.^ 
P. 44 477, Jan., 1891 ;_ 0. 17890, Apr. 29, 1905.^ 

XI D. On the question raised as to the subsistence of the wives 
and guests of the members, etc., of the Mississippi River Commission, 
under the provision of the act of April 28, 1904 (33 Stat. 495), for 
"traveling and miscellaneous expenses of the Mississippi River Com- 

* See Dig. Second Comp. Dec, vol. 3, pars. 838 and 841. 



790 NAVIGABLE WATERS — NOTAEY PUBLIC. 

mission," etc., held, that the right to subsistence is one which accrues 
only to the members of the commission and their authorized assist- 
ants and employees ; and that in the absence of legislation for the sub- 
sistence of the wives or guests of the members, the same would not be 
legal. C. 17890, Apr. 29, 1905. 

CROSS REFERENCE. 

Dredging See Army I B 9. 

NAVY. 

Deserter from See Enlistment I A 9 d. 

Previous service in See Enlistment I D 2 a. 

Relative rank See Rank II D. 

Retirement See Retirement I A 1 c. 

NEUTRALITY. 

Preservation of. See Army II K to III. 

NEWSPAPEE. 

Rule of nonintercourse in war See War I C 2 c. 

Suppression of, in time of war See War I C 4 to 5. 

Reporters of, subject to military control See War I G 1. 

NEW TRIAL. 

See Discipline XIV K 1. 

NOLLE PROSEQUI. 

Entering of. See Discipline III E 6; IV B 1; VII B 2. 

NONCOMMISSIONED OFFICER. 

See Army I E 1 to 3. 

Abuse of soldiers See Desertion IX K. 

Appointment See Civilian employee VIII B. 

Command V C 1 c. 

Discretion of, as to complaints See Command VI A 1 b. 

Dropped for desertion See Desertion VII A 1. 

Loaning money by See Articles of War LXII C 15; E. 

Power to arrest a soldier See Command VI A 1 a. 

Rank of. See Rank I D to E. 

Reduction See Command V C 2. 

Summary discharge of See Discharge XXV. 

Warrants of. See Army I E 1 a. 

NONINTERCOURSE. 

Law of, in war See War I C 2 to 3. 

NONPERFORMANCE. 
Contract See Contracts X to XI. 

NOTARY PUBLIC. 

Enlisted man as See Army I E 3 b. 

Civilian employee as See Civilian employee VII to VIII. 



NOTICE OATH. 791 

NOTICE. 

Of acceptance of bids See Contracts XI D 2. 

Of acceptance of resignation See Office IV D 5 c to e. 

Civilian employee XI A 3. 

Of action of reviewing authority See Discipi.ine XIV E 9 e. 

Of commutation of sentence See Pay and allowances III C 1 b. 

Of confinement See Discipline XVII A 4 a. 

Of discharge See Discharge VIII A; XIII D 1 to 9 b; 

XVI E. 

Discharge VIII D 2. 

Of discharge of witness See Discipline X G 1. 

Of discharge to insane soldier See Discharge V C; XIII D 4 a. 

Of dismissal See Office IV E 1 a to b. 

Of dismissal to prisoner of war See War I C 11 d (1). 

Of muster out See Discharge XIV D 3. 

Volunteer Army I D 1 a (3); 2 a to b. 

Of order .See Communications I B 1; la; 2. 

Of retirement See Retirement I A 1 a; I D. 

Of school tax See Tax IV B. 

Of summary dismissal See Office IV E 2 b to c. 

Of suspension and dismissal See Discipline XII B 3 f (3) (b). 

To remove wrecks See Navigable waters VII B. 

To specify changes in a bridge See Navigable waters IV A to D ; F 

To squatters on military reservation See Public property II B 3 a. 

NUISANCE. 
Hospital, not See Claims V. 

NUNC PRO TUNC. 

Acceptance of resignation See Civilian employees XI A 1. 

Appointments See Command V C 1 a. 

Laws I B 2. 
Appointments of noncommissioned officers. See Army I E 2 c. 

Approval of advertisement See Contracts V A. 

Approval of gratuitous issues See Pay and allowances II A 3 a (4) (d) 

[1] [a]. 

Cession of jurisdiction See Public property V E 2 d. 

Charges See Discipline II H 1. 

Discharge See Discharge XIV A 2. 

Dismissal unauthorized See Pay and allowances III Ala. 

Leaves of absence may not be granted See Absence I B 1 c (2); II B 10. 

Muster out See Volunteer Army IV D 3 to 4. 

Order See Communications I D. 

Pardon See Desertion XV A. 

Pardon VIII. 

Rank See Allowances I B 1 a. 

Separation from service See Pay and allowances I A 1 a. 

NURSE CORPS. 

See Army I G 3 d (6) to (7). 

Leave of absence See Army I G 3 d (6) (a) [2]. 

Status See Army I G 3 d (6) (a) [1]. 

NURSES. 

Status See Absence I D. 

Subsistence of See Army I G 3 (6) (3) (a) [4]. 

OATH. 

Authority to administer See Office III A 8 b. 

Members of general court-martial See Articles of War LXXXI V A to C 4. 



792 OATH OF ALLEGIENCE OFFICE : SYNOPSIS. 

OATH OF ALLEGIANCE. 

See Claims VII A. 

Prisoner of luar See War I C 11 c (5) (a). 

United States Volunteers See Volunteer Army II C 2. 

OATH OF ENLISTMENT. 

Fixes date of enlistment See Enlistment I A 8 a. 

Not essential to validity See Enlistment I a 2. 

OATH OF OFFICE. 

See Office III A 8 a; b. 

OBJECTION TO EEENLISTMENT. 

Of deserter See Discharge, II B 2 a; XI C 1, 

Enlistment I D 3 c (13). 

OBSTRUCTION TO NAVIGATION. 

See Navigable waters I to II. 

Bridges See Navigable waters III A 2 b. 

By contractor See Navigable waters X C 1. 

OBTAINING MONEY UNDER FALSE PRETENCES. 
By soldier See Command V A 2 f . 

OFFICE. 

I. DEFINED Page 796 

A. Creating Power Prescribes Incidents of Office Page 797 

n. APPOINTING POWER. 

A. Can Not Create Office. 

1. Can not revive an office that has ceased . 

B. Must Keep Offices Filled. 

C. Advancement is by Appointment or Promotion. 

D. Nomination vice Previous Occupant. 

E. Appointing Power, When Exhausted. 
m. APPOINTMENTS. 

A. Original Entry Into Service. 
1. Source. 

a. From United States Military Academy Page 798 

b. From ranks. 

(1) Must be a citizen. 

(2) Must be less than 30 years of ai^e. 

(3) Must have served two years. 

(a) Furlough not deducted. 

(4) Physical examination not one of two examinations 

required. 

(5) Status of eligibility. 

(a) May be lost how? 

c. From civil life. 

(1) To Porto Rican regiment Page 799 

(2) To Medical Corps. 

(3) Age limit. 



office: synopsis. 793 

m. APPOINTMENTS— Continued. 

A. Original Entry Into Service — Continued. 

2. Recess appointment. 

3. Appointment with consent of Senate. 

4. Appointment by President alone. 

a. Cadets Page 800 

(1) Reappointment of discharged cadet. 

b. Volunteer regiment — field and staff officers. 

c. Dismissed officer. 

5. Can not be conditioned Page 801 

6. Vesting of office. 

a. Date fixed by acceptance. 

(1) Exception: Appointments fi'or^ United States Military 
Academy. 

b. Appointments from ranks. 

c. Appointment of surgeons. 

7. Acceptance. 

a. Express or implied. 

8. Oaths. 

a. Oath of office. 

(1) Authority to administer given by law Page 802 

(2) Postmaster can not administer to officer. 

(3) New oath required after confirmation of recess appoint- 

ment. 

(4) Must take oath prescribed. 

b. Authority to administer. 

(1) In investigations. 

(2) For purposes of administration. 

B. Promotion. 

1. By seniority. 

a. Exception. 

(1) Special act of Congress Page 803 

(2) Sentence of suspension by general court-martial. 

(3) Suspension fi'om promotion, upon failure in examination. 

2. No vested right in promotion. 

3. Vesting of office. 

a. Date fixed by appointment Page 804 

(1) Provided acceptance follows. 

(2) No obligation before date of appointment. 

(3) Commission not delivered. 

(4) Promotion subject to examination. 

(a) Sickness is an exigency. 

(6) New commission not issued Page 805 

4. By operation of law. 

5. Acceptance. 

a. Express or implied . 

6. From line to staff. 

a. Requires appointment, confirmation and commission. 

C. Transfer. 

1. Rights which accrue. 

D. Detailed Staff. 

1. Office vests by detail. 

a. On date of the order Page 806 

b. For four years. 

c. Detail to general staff corps of a detailed staff officer. 

d. Redetail of lieutenant colonel to inspector general's depart- 

ment. 



794 OFFICE : SYNOPSIS. 

in. APPOINTMENTS— Continued. 

D. Detailed Staff — Continued. 

2. Promotion. 

a. Causes relief. 

b. May be redetailed Page 807 

3. Relieved in emergency. 

4. May transfer as line officer with other line officers. 

E. Appointments by Secretary of War. 

1. Veterinarians. 

2. Paymasters' clerks. 

3. Master of the Sword at West Point. 

F. Restoration of Officer Legally Separated from Service. 

1. By appointment only Page 808 

G. Tenure of Office. 
IV. VACATION OF OFFICE. 

A. By Accepting Another Office. 

1. General rule. 

a. Accepting other office in Army. 

2. Under section 1222, Revised Statutes. 

a. Exercise of congressional power to raise armies. . Page 809 

b. "Exercise functions of civil office " defined. 

c. "Civil office" means pufcZic o^ce. 

(1) Civil offices which can not be held Page 810 

d. Offices which can be held. 

(1) In militia. 

(2) In Philippines. 

(a) Disbursing officer Page 811 

(b) Power of justice of peace. 

(3) In State volunteers. 

(a) In District volunteers. 

e. Positions which are not offices. 

(1) Devising sewerage system for a city. 

(2) Consultingengineer to city or State officials... Page 813 

(3) Director of business enterprise. 

(4) Attending civihan patients as surgeon. 

(5) Consulting engineer to city board. 

(6) Country under military control. 

(a) In Cuba and Porto Rico. 

(6) In Philippine Islands. 

[1] Administered by the Army Page 813 

[2] When administered by the civil govern- 
ment. 
[3] Detail with governor general Page 814 

(7) Advisory duty in connection with international boundary 

commission. 

B. Under Section 1224, Revised Statutes. 

1. Assisting in engineer work for State Page 815 

2. Detailed with World's Fair Commission. 

C. By Appointment op Successor. 

D. By Resignation. 

1. May be revoked before acceptance. 

2. By an insane officer , Page 816 

3. With pledge 



office: synopsis. , 795 

IV. VACATION OF OFFICE— Continued. 

D. By Resignation — Continued. 

"4. Of deserter. 

5. Acceptance of resignation. 

a. May be refused. 

b. Power to accept may be delegated. 

c. Notification of acceptance. 

(1) Constructive notification. 

(2) By appointment of successor Page 817 

d. Not revocable after notification. 

(1) Even if acceptance is infuturo. 

(2) Remarks in acceptance. 

6. Character of discharge. 

E. Dismissal. 

1. By sentence of court-martial. 

a. Date of confirmation fixes date of dismissal. 

(1) Previous date can not be fixed Page 818 

(2) Case of failure of notification due to capture by enemy. 

b. Irrevocable if legal. 

(1) If illegal, office not vacated. 

(«) De facto officer mustered in, vice officer illegally 
dismissed Page 819 

c. Does not render ineligible for appointment to oflace or enlist- 

ment. 

2. By order of President. 

a. Removes from office. 

(1) WTiether members of antecedent advisory board were 
> sworn or not. 

b. Date of is date of notification Page 820 

(1) Date fixed infuturo. 

c. By officer inferior to President. 

(1) By Secretary of War. 

(2) By officer inferior to Secretary of War. 

d. Irrevocable. 

(1) If revoked status of de facto officer attaches. . . Page 821 

e. Character. 

f . Does not render person ineligible for appointment or enlistment. 

g. Cadets. 

(1) Summarily discharged, 
(o) For cause. 
(6) Irrevocable, 
(c) Discharge is without honor. 

F. By Faiung to Pass Examination after Promotion Subject to Exami- 

nation. 

G. Of Battalion Staff Officers by Detail Elsewhere Paae 822 
V. OFFICE IN VOLUNTEERS. 

A. Appointment. 

1. Executive has power to prescribe rules of. 

2. Acceptance of Presidential appointment necessary. 

3. Restoration to command of dismissed officer. 

a. Is new appointment if Volunteer Army still exists. 

b. Impossible after Volunteer Army has been mustered out. 

4. State volunteers. 

a. Past appointment by governor not to be held to be unconstitu- 

tional. 

b. Governor appoints by authority of United States under act of 

April 22, 1898 .„ Page82S 



796 . OFFICE I. 

V. OFFICE IN VOLUNTEERS— Continued. 
A. Appointment — Continued. 

4. State volunteers — Continued. 

c. OiBce in State volunteers analogous to military office in Regular 

Army. 

d. Three parties to the appointment— the United States, the State, 

and the individual. 

e. Power to appoint includes power to fill vacancies. 

5. Vesting of office. 

a. When appointed by President. 

(1) Date of acceptance fixes date Page 824 

(2) Even if remedial legislation gi\es pay for service pre- 

vious to date of acceptance. 

b. Appointment by governor. 

(1) Volunteer office vests through muster-in only. 

(2) Date of muster-in fixes date of vesting. 

(3) Date previous to muster-in can not be fixed. 

6. De facto officers. 

a. Acts lawful as far as rights of third persons are concerned. 

7. Vacation of office. 

a. By accepting another office in the volunteers Page 825 

b. By abandoning office. 

c. By summary dismissal. 

d. Two offices may be held without vacating either, viz : 

(1) Public civil officer may accept a volunteer commission. 

(2) Volunteer officer holding office in Regular Army. 

(a) Regular office vesting first. 

(6) Volunteer office vesting first Page 826 

e. By abolishing office. 

f . By sentence of general court-martial. 

I. A public office ^ is a place created by statute or by virtue of a 
power conferred by statute, for the purpose of the administration of 
public affairs, and the holder of which is appointed or elected and not 

1 An office is a public station or employment, conferred by the appointment of 
government. The term embraces the ideas of tenure, duration, emolument, and 
duties. The duties are continuing and permanent, not occasional and temporary, and 
are defined by rules prescribed by government and not by contract. U. S. v. Hart- 
well, 6 Wall. 385; U. S. v. Germaine, 99 U. S. 508. See also U. S. v. Mouat, 124 
id. 307; U. S. v. Maurice, 2 Brock. 98 (Federal Cases, No. 15747); U. S. v. Bloom- 
gart, 2 Benedict, 356 (Federal Cases, No. 14612); In re Hathaway, 71 N. Y. 238; Row- 
land V. Mayor, 83 id. 372; People v. Duane, 121 id. 367; In re Corliss, 11 R. I. 640; 
Wilcox V. People, 90 111. 186; Throop v. Langdon, 40 Mich. 673; State v. De Gress, 
53 Tex. 387; 13 Opins. Atty. Gen. 310; 20 id. 686; 4 Comp. Dec. 696, and authorities 
cited. A public officer is the incumbent of an office "who exercises continuously, 
and as a part of the regular and permanent administration of the Government, its pub- 
lic powers, trusts, and duties." Sheboygan Co. v. Parker, 3 Wall. 93. In view of the 
provisions of the Constitution as to the appointment of officers, unless a person in the 
service of the United States holds his place by virtue of an appointment by the Presi- 
dent, or of one of the courts of law, or heads of departments, authorized by law to make 
such appointment, he is not, strictly speaking an officer of the United States. U. S. 
V. Germaine, 99 U. S., 508; U. S. v. Mouat, 124 id. 307; U. S. v. Smith, id. 525; 1 Comp. 
Dec. 540; 4 id. 703; 5 id. 649. An officer of the Army or Navy of the United States 
holds his office at the will of the sovereign power, and not by contract. Crenshaw v. 
U. S., 134 U. S. 99(24 C.C. 57). Rank is not office. Cloud i). U. S., 43 C. C. 69. A 
military office is a public office. Oliver v. Jersey City, 63 N. J. Law, 96 (34 Vr. 96 or 
42 Atlantic 782). For same case in court of errors and appeals of N. J. see 63 N. J. 
Law 634 (34 Vr. 634 or 44 Atlantic 709); Kerr v. Jones, 19 Ind. 351. 



OFFICE I A. 797 

employed by contract merely, and is vested with functions involving 
the action of some part of the macliineiy of government (legislative, 
executive, or judicial) belonging to the pohtical community whose 
agent he is. C. 2301, May, 1896; R: 26, 652, July, 1868; 28, 22, 
July, 1868; 30, p. 437, June, 1870. 

I A. Offices are created by law and the power to create an office 
involves the corresponding power to prescribe the necessary incidents 
of such office such as tenure, salaiy, emoluments, and, within certain 
limits, conditions of eligibihty. C. 23122, Apr. 22, 1908. 

II A. As all offices in the military establishment are created by law, 
the Executive is without authority to establish or maintain offices which 
are not expressly pro\'ided for in suitable enactments of Congress or 
to increase their number unless authorized to do so by law, either 
expressly or by necessary implication.^ C. 15844) Jan. 21, 1904. 

II A 1. An officer of volunteers was sentenced, by a general court- 
martial, to be dismissed the service and to be confined. He was 
later pardoned by the President, who used the words: ''Restore him 
to his former rank and position in the service." In the mean time the 
regiment of which he had been an officer had been mustered out. 
Held that although the language of the President was fit and proper for 
an appointment to office, it did not operate to invest the man with 
office since the office had ceased to exist. C. 23071, Apr. 11, 1908. 

II B. The Constitution vests in Congress the power ''to raise and 
support armies." In the exercise of that power Congress determines 
the composition of the commissioned personnel of the several branches 
of the line and departments of the staff. Held that it is the duty of 
the appointing power to see to it that the offices which make up the 
several branches of the mifitaiy establishment are at all times kept 
filled to their authorized statutoiy strength. C. 21053, Mar. 8, 1910. 

II C. Advancement in the military estabfishment may be had in 
two ways— by promotion or by appointment. Thus, an officer of a 
particular branch of the line or department of the staff may, upon the 
occurrence of a vacancy in his arm or department, be advanced to 
fill a vacancy caused by the death, resignation, dismissal, etc., of a 
superior in the same line of promotion; or a vacancy may occur in the 
lowest grade of a staff department, and may thus be filled by appoint- 
ment, that is, by the selection of a duly qualified person, and by his 
nomination and confirmation in the manner prescribed in the Con- 
stitution. C. 19425, Mar. 17, 1906. 

II D. Where an officer duly appointed to office refuses to accept, his 
successor is nominated in his place and not in that of the preceding 
incumbent. C. 23983, Oct. 7, 1908. 

II E. Where an appointment to a specific mihtary office has been 
duly made and accepted and has taken effect, held, that the appoint- 

' Maj. Gen. John C. Fremont, commanding the Western Department in 1861, claimed 
the right to appoint officers to existing offices and to offices that did not exist except 
as to the claim that his appointment created such offices, and actually made such 
appointments. He had no power to create office, and no authority to appoint officers 
to public office. See R. and P. 456, 829. Power of appointment under the United 
States can not be communicated by act of Congress to persons not named to that end 
by the Constitution. 8 Opins. Atty. Gen. 41. The President can not appoint a 
greater number of quartermasters in the regular Army than that fixed by law. Mont- 
gomery V. U. S., 5 C. C. 93. Appointments can not be made by legislative enactment. 
Wood V. U. S., 15 C. C. 151. For constitutional rule governing appointments to office 
see 13 Opin. Atty. Gen. 516; 15 id. 3, 17 id. 537, and 23 id. 574. 



798 OFFICE III Ala. 

ing power, as to that office, is exhausted. The Executive may indeed 
correct an error (of fact) in the date of such appointment, but — no 
such error existing — he can not remake the same as of a different 
and earher date, either by his own action or by means of a renomina- 
tion to the Senate, for the purpose of redressing an injury or grievance 
claimed by the officer to have resulted from the date originally given 
to the appointment. For such would be a granting of relief, and 
relief of a sort which can be accorded only by Congress.^ R. J^S, 
208, Feb., 1880; G. 19650, May 7, 1906. 

Ill Ala. Held that the legislation of Congress in regulating appoint- 
ments to the lowest commissioned grade in the Army recognizes the 
graduating class of the United States Military Academy as the prin- 
cipal and primary source of supply, and failing from this source in the 
numbers necessary to fill vacancies, it recognizes for such appoint- 
ments applicants from among quaUfied enlisted men and from civil 
life in that order. Held further that all vacancies existing July 1 
each year after assignment of the graduating class has been made are 
open to the competition of enlisted men; that qualified civilians are 
eligible for appointment only to such vacancies as remain after the 
list of enlisted competitors is exhausted; that remaining vacancies 
and those thereafter occurring are properly reserved for the next 
graduating class.^ O. 20217, Aug. 6, 1906; 3305, June, 1897; 28113, 
Apr. 8, 1911, and July 5,1911. 

IIIAlb(l). Where a soldier who had not been naturalized 
desired to compete for appointment as a lieutenant, held that he 
should be discharged and reenlisted immediately upon the completion 
of his naturahzation.^ P. 57, 155, Dec, 1892; 62, 186, Oct., 1893; 
C. 3366, July, 1897; 19108, Jan. 29, 1906. 

Ill A 1 b (2). The requirement of the act of July 30, 1892 (27 Stat. 
336), that enlisted men should be less than 30 years of age in order 
to "compete" does not require that they shall be under that age at 
date of appointment. C. 204U, Oct. 2, 1906; 17381, Jan. 13, 1905. 

Ill A 1 b(3) (a). In the computation of the two years which an 
enlisted man must have served before he becomes eligible for appoint- 
ment to the grade of second lieutenant, under the act of July 30, 
1892 (27 Stat. 336) , held that absence on furlough shall not be excluded 
therefrom. C. 1939, Dec. 26, 1895. 

Ill A 1 b (4). Section 3 of the act of July 30, 1892, provides "that 
no more than two examinations shall be accorded to the same com- 
petitor." Held that the physical examination required is merely 
preliminary to the mental, and a failure to pass it does not constitute 
an examination within the meaning of the statute. There must be 
two failures to pass the competitive mental examination to render 
the candidate ineligible for further examination. C. 9521 , Jan., 1901 . 

Ill A 1 b(5) {a). Held that when a soldier holding a "Certificate 
of Eligibility" for appointment to a second lieutenantcy either 
marries or fails to reenlist after discharge ( C. 4118, May, 1898; 3577 , 
Oct., 1897; 18033, May 27, 1905) or becomes physically disqualified 

1 Section 3 Op. Atty. Gen., 307. 

2 36 Stat. 1045, Mar. 3, 1911. 

The Attorney General held that the word "appointment" as used in sec. 1219, 
R. S., applies only to original entry into the regulai service or his subsequent ap- 
pointment by selection, and does not include his appointment on promotion. See 
17 Op. Atty. Gen., 196, reversing id., 34. 

3 See act of July 30, 1892 (27 Stat. 336). 



OFFICE III A 1 C (l). 799 

for active service, he is no longer eligible for such appointment,* 
C. 3577, Oct., 1897. 

Ill A 1 c(l). Held that under section 4 of the act of May 27, 
1908 (35 Stat. 392), the President may appoint persons who are not 
citizens of the United States but are citizens of Porto Rico to the 
office of second lieutenant in the Porto Rico Regiment of Infantry. 
Held further that the act in question is a legislative suggestion to 
the President to give special recognition in making such appoint- 
ments to the citizens of Porto Rico, whether they be civilians pure 
and simple or enlisted men of the Porto Rico Regiment of Infantry. 
C. 23668, Apr. 28, 1909. 

Ill A 1 c (2). There is no statute or regulation which prevents a 
citizen of Porto Rico from being appointed an officer of the Medical 
Corps; the instructions to candidates for examination being in the 
nature of a self-imposed restriction on the appointing power, sug- 
gested that it be waived as to citizens of Porto Rico. G. 17488, 
Jan. 30, and May 4, 1905. 

Ill A 1 c (3). Held that a civilian is not eligible for appointment 
to a commissioned office in the Army if at the date of the issue of 
the commission he is older than the limiting age fixed by law for 
civil appointees.2 C. 20639, Dec. 16, 1911, and Jan. 18, 1912. 

Ill A 2. A man was appointed, by a recess appointment, to the 
office of captain and adjutant general of Volunteers. Upon the con- 
vening of Congress he was nominated to the same grade, but the 
Senate rejected his nomination. Held that this rejection did not of 
itself oust him from office; and if no action had been taken by the 
President thereon his occupation of office would have continued 
until the end of that session of Congress.^ C. 9096, Oct. 10, 1900. 

Ill A 3. A recess appointment is not continued by a new appoint- 
ment and commission submitted during a session of the Senate; the 
latter is a new and distinct appointment.* C. 2805, Dec, 1896: 
7790, Mar. 8, 1900; 11 466, Oct. 5, 1901; 17480, Feh. 2, 1905. 

' See 22 Op. Atty. Gen., 91. 

2 See act of Mar. 3, 1911 (36 Stat. 1045). 

3 See 2 Op. Atty. Gen., 336; 4 id., 30; CI. 3, sec. 2, Art. II of the Constitution pro- 
vides that the President shall have power to fill up all vacancies that may happen 
during the recess of the Senate, etc. Held by the Attorney General that the words 
"may happen during the recess" are equivalent to "may happen to exist during 
the recess." 1 Op. Atty. Gen., 631. Also held that the exercise of this power by the 
President is not limited to filling those vacancies which occur during the recess. 2 
Op. Atty. Gen., 525. Also held that he may fill vacancies by recess appointment 
that occur due to an omission of the Senate to act on a nomination. 3 Op. Atty. Gen., 
676; and 4 id., 523. The President has full and independent power to fill vacancies 
in the recess of the Senate without any limitation as to the time when they first 
occurred. 12 Op. Atty. Gen., 32, and 449 and 455; 14 id., 563; 15 id., 207; 16 id., 
523. A vacancy occurring during a temporary adjournment of the Senate is one hap- 
pening "during the recess of the Senate" which the President may fill by a commis- 
sion expiring at the end of their next session. Gould v. U. S., 19 Ct. Cls., 593, contra, 
23 Op. Atty. Gen., 599. 

* A recess appointment is made pursuant to the authority contained in Art. Ill, 
sec. 2, par. 3, of the Constitution, which provides that: "The President shall have 
power to fill up all vacancies that may happen during the recess of the Senate by 
granting commissions which shall expire at the end of their next session." 

9 \\Tieaton, 720, 721; 2 Op. Atty. Gen., 336; 1 Fed. Rep., 104, 109; 20 id., 379, 
382; Dig. 2d Comp. Dec. (1869), vol. 1, sec. 152, p. 22. 

The Senate may not originate an appointment. Neither can it vary the conditions 
of appointments submitted by the President. 3 Op. Atty. Gen., 189. 



800 OFFICE III A 4 a. 

Ill A 4 a. The President appoints all cadets ^ to the Military 
Academy. Held, that the nomination to the President, by Members 
of Congress, of applicants for such cadetships rests on custom alone, 
which has been unbroken for such a length of time as to have acquired 
the character of established Executive practice and that no change 
should be made in the custom without legislative sanction. C. 22924, 
J an. 7, 1911. 

Ill A 4 a (1). Where a cadet has been found deficient and, as a 
result, has been discharged from the military service, his return or 
reappointment to the Academy is in the nature of a new appointment. 
Held, however, that the age limit for the admission of cadets, set 
forth in sec. 1317 R. S., does not apply to such reappointment, since 
the provisions of sec. 1325 R. S., fix no age limit, the object of return- 
ing or reappointing the dismissed cadet being to permit of his con- 
tinuing or fulfilling a career already begun. C. 16602, July 26, 1904, 
and Mar. 22, 1912. 

Ill A 4 b. Held, that as the Volunteer Army act of April 22, 1898 
(30 Stat. 361), contains no express provision for the appointment by 
any one of the regimental (fieid and staff) officers of a volunteer regi- 
ment composed of companies taken from two or more States, the 
President may, under section 2 of article 2 of the Constitution, appoint 
such field or staff officers.^ C. 4^24, July, 1898. 

Ill A 4 c. The Constitution (Art. II, sec. 2, par. 2) provides that 
"Congress may by law vest the appointment of inferior officers in the 
President alone, in the courts of law, or in the heads of departments. " 
So, where, in three several cases, Congress, by special legislation, 
authorized the President to "restore," or ''reinstate," in his former 
rank and office, an officer (who had been — ^as expressed in the act, or 
indicated by the reports of committees, debates, etc. — in the opinion 
of Congress, erroneously or unjustly dismissed or mustered out), and 
to place him on the retired list in his previous grade, held, that such 
legislation empowered the President to reappoint the party without 
the concurrence of the Senate, and that the simple act of appointment 
by the President alone fully invested the party with the military 
office.^ R. 42, 178, 193, 196, 246, 353, Feh., Mar., and July, 1879; 
43, 130, Jan., 1880; C. 18785, Oct. 25, 1905. 

^ A cadet in the United States Military Academy at West Point is not an officer of 
the Army within the meaning of sec. 1229, R. S., prohibiting dismissals from service 
in time of peace, except after trial and conviction by court-martial. Hartigan v. 
U. S.,196U. S. 169. 

2 See 22 Op. Atty. Gen., 146. 

During the Civil War a large number of volunteer officers were appointed by the 
President alone through notification by the Secretary of War or the Adjutant General. 
This class includes officers of colored troops appointed through the bureau of colored 
troops, and officers of white volunteers from States whose authorities refused or omitted 
to respond to the President's call for troops, officers of Territorial organizations, the 
Mississippi Marine Brigade, the Indian Home Brigade, the First Army Corps, U. S. 
v., and the First U. S. Vol. Eng. See R. and P. 456, 829. 

^As to who are inferior officers see Collins v. U. S., 14 Ct. Cls., 568. 

Appointments to office can be made by heads of departments only in those cases 
which Congress has authorized by law, and consequently the appointment of an agent 
of fortification by the Secretary of War is irregular. U. S. v. Maurice: Case No. 15747, 
Fed. Cases. 

See this ruling confirmed by the Court of Claims in Collins v. United States, 14 
Ct. Cls., 568. The Solicitor General (16 Op. Atty. Gen., 624) had previously held 
contra. 

See acts of July 22, 1861; June 21, 1876, c. 143; June 19, 1878, c. 330; Mar. 3, 1879, 
C. 175. 



OFFICE III A 5. 801 

III A 5. An applicant for an original appointment as an officer of 
the Army offered, if some alleged physical defect which stood in the 
way of his appointment were passed over, to waive any future right 
he might have to a pension ; held, that there is no right to exact from 
such applicant a waiver of his right to a pension under the statutes. 
'It would, however, be proper to make a record of defects shown by 
the examination of the applicant; in order, should the case arise, that 
it might be shown that the defects antedated the appointment of the 
person examined. C. 25392, Aug. 6, 1909; 29295, Dec. 8, 1911. 

Ill A 6 a. In the case of original appointments to office the general 
rule is that the office vests on the elate of its acceptance by the 
appointee, even if the oath of office is not taken until afterwards.^ 
C. 23668, Dec. 7, 1908; 4567, July 12, 1898; 6644, June, 1899; 12599, 
May 12, 1902; 16732, Aug. 17, 1904. 

Ill A 6 a (1). The appointment of a graduate of the Military 
Academy to the office of second lieutenant in the Army differs from 
a similar appointment from other sources in that as the cadet has 
signed articles, under the requirements of section 1321, R. S., to serve 
the Government eight years, a formal acceptance is not required of 
him in order to vest in him the office of second Keutenant. Held, 
in a particular case in which a cadet did not furnish the oath of alle- 
giance required by section 1757, R. S., and desired to sever himself 
from the military service by not accepting his appointment as second 
lieutenant and by not reporting for duty, that the office had vested 
at the date of appointment. Held, further, that after the lapse of 
the statutory period he could be dropped for desertion as provided 
in section 1229, R. S. _ 0. 27241, Sept. 9, 1910. _ 

III A 6 b. In a case in which a sergeant read in the press that he 
had been appointed a second lieutenaiiit and without formal notice of 
his appointment accepted it by letter to The Adjutant General. The 
press notice was a correct statement of the appointment Held, that 
the sergeant became fully invested with the office on the date when 
he mailed acceptance.^ C. 16732, Aug. 16, I904. 

Ill A 6 c. Held that under the acts of July 5, 1884 (23 Stat. 112), 
and February 2, 1901 (31 Stat. 752), the office of assistant surgeon, 
with rank of first lieutenant in the Medical Department, vests when 
the President signs the appointment or commission.^ C. 23135, Mar. 
10, 1909. 

Ill A 7 a. No statute of the United States requires an office to be 
accepted. Held that under existing practice, however, an acceptance 
is required. It may be "express" as by a formal acceptance in writ- 
ing, or "implied" as by entering upon the performance of the duties 
of the office.3 C. 27241, Oct. 7, 1910; 19425, Mar. 17, 1906; 23668. 
Dec. 7, 1908. 

' See U. S. V. Flanders, 112 U. S., 88; U. S. v. Eaton, 169 U. S., 331; IV Comp. 
Dec, 496, 601; VI id., 672. 

In the case of an original appointment, if after confirmation by the Senate the 
President withholds a commission, the office does not vest. 4 Op. Atty. Gen., 218; 
12 id., 304. 

2 See Marbury v. Madison, 5 U. S., 137. 

^ See Digest 2 Comp. Dec. of 1869, pars. 1103 and 1105. Also see 3 Op. Atty. Gen., 
577. 

93673°— 17 51 



802 OFFICE III A 8 a (l). 

Ill A 8 a (1). Neither a major general commanding nor the Secre- 
tary of War can authorize an othcer to administer an oath — such 
autiiority must be given by law. R. 3^, 648, Dec. 1878; P. 56, 88, 
Oct.. 1892; C. 4892, Sept. 1, 1898. 

Ill A 8 a (2). A postmaster is not competent to administer the 
oath of office to an officer of the Army. P. 39, 19, Feb., 1890; O. 
26721, May 14, 1910. 

Ill A 8 a (3). A graduate of the Military Academy having received 
a recess appointment to the office of second lieutenant and taken the 
required oath, was promoted before he had been confirmed a second 
lieutenant by the Senate. Held that on his confirmation as a second 
lieutenant he need not again take an oath as such, his acceptance of 
the office to which he had been promoted serving to vest a new office 
and to vacate the office to which he had been originally appointed. 
Held, however, in the case of an officer wiio received a recess appoint- 
ment and took the oath of office that a new oath must be taken on 
confirmation should the officer at that time hold the same office. 
C. 22670, Jan. 31, 1908; 22889, Mar. 13, 1908. 

Ill A 8 a (4). Held that an officer of the Army, in 'entering upon 
his office, could not be allowed (in the absence of special authority 
from Congress) to take a modified oath of office on the ground that his 
religious convictions would not permit him to take the oath as pre- 
scribed in the statute. R. 11, 603, Feb., 1865; 19, 89, Oct., 1865, 
and 376, Jan., 1866. 

Ill A 8 b (1), An officer of the Army has no authority, virtute 
officii, to administer' an oath. He is indeed specially empowered to 
exercise this function under certain circumstances by statute — as 
by the second, eighty-fourth and eighty-fifth articles of war; and 
further by section 183, R. S., in a case where, bemg an officer of the 
War Department, he is detailed to investigate frauds, etc.^ R. 34. 
648, Dec, 1873. 

Ill A 8 b (2). Held that judge advocates of departments (even 
though line officers merely assigned to that duty, C. 3746, Dec, 
1897; 9060, Oct., 1900) and trial judge advocates, including trial 
officers of summary courts, are authorized under the act of July 
27, 1892 (27 Stat 278j, and section 1758 R. S. to administer oaths 
of miUtary office. C. 44~i-l , June, 1898. They may also administer 
the oaths recjuired to be made by officers who signed contracts under 
section 3745 R. S. on behalf of the Goverimient, under the act of July 
27, 1892 (27 Stat. 278). C. 3671, Nov., 1897; 3768, Jan. 5, 1898; 
4892, Sept. 1, 1898; 8725, Aug. 7, 1890. They may also administer 

1 By Bee. 4 ol the act of July 27, 1892 (27 Stat. 278), ''judge advocates of depart- 
ments and of couits-martial, and the trial officer of summary courts, are * * * 
authorized to administer oaths for the purposes of the administration of military 
justice, and for other purposes of military administration.'' 

Under sec. 19 of the act of May 28, 1896 (29 Stat. 184), United States commis- 
sioners and all clerks of United States courts are authorized to administer oaths gen- 
erally (III Comp. Dec, 65). 

Sec. 183, R. S., was amended Mar. 2, 1901, to read as follows: "Any officer or 
clerk of any of the departments lawfully detailed to investigate frauds on, or attempts 
to defraud, the Government, or any irregularity or misconcluct of any officer or agent 
of the United States, and any officer of the Army detailed to conduct an investigation, 
and the recorder, and, if there be none, the presiding officer of any military board 
appointed for such purpose, shall have authority to administer an oath to any witness 
attending to testify or depose in the course of such investigation," 



OFFICE III B 1 a (l). 803 

oaths to sureties on a Government contractor's bond.* C. 3768. 
Jan. 5, 1898. The passage of tlie act of July 27, 1892, does not affect 
the power of administering oaths of officials who were authorized 
to do so before the passage of that act. P. 56, 408, Nov., 1892. 

Ill B 1 a (1). Held that a civilian (in this case a late captain who 
had been made a civilian by the approval ajad execution of a sentence 
dismissing him from the Army) could, under existing law, be appointed 
to t)ie line of the Army only in the grade of second lieutenant, in the 
absence of express authority from Congress.^ For his appointment 
to his former grade, so as to except his case from the operation of the 
rule of promotion by senioritv,^ the authoritv of Congress would be 
necessary." B. 29, 47, June, 1869; 37, 363, Mar., J876; 38, 159. 
July, 1876; 39, 525, May 1, 1878; 43, 130, Jan., 1880. Held that pro- 
motion bv seniority is required for the Porto Rican Regiment. 
C. 13323,^86^1. 18, 1902. 

Ill B 1 a (2). An officer who is senior in his grade is ineligible, 
while under a legal sentence of suspension from rank, to promotion 
to a vacancy occurring in a higher grade pending the term of his 
suspension. Upon such vacancy, the next senior officer becomes 
entitled to the promotion in his stead. R, 7 , 8, Jan., 1864; ^S, 164, 
Oct., 1868; 33, 69, June, 1872;^ 37, 536, May, 1876. 

Ill B 1 a (.3). The suspension from promotion, upon failure to 
pass a qualifying examination, is in the nature of a 2)enalty, and the 
suspension becomes operative when the right of the officer to pro- 
motion would have accrued had he passed a satisfactory examination. 
C. 15028, July 30, 1903. Such suspension runs for one year, in any 
event, and until a vacancy occurs to which the officer can be appointed 
should he succeed in passing his examination. C. 15028, July 30, 
1903; 15097, July 29, 1903; 15561, Nov. 30, 1903; 23096, A]}r. 18, 
1908, May 12, 1910. 

Ill B 2. There is no vested right in promotion as such on the part 
of officers of tlie Ai'my. All that can be said is that officers have 
certain rights of promotion under whatever may be the law from time 
to time. These rights vary with the law. Congress may change the 
date of an officer's commission so as to give him a right of promotion 
over other officers who ranked him before, and so })ostpone their right 
to his. Thus, where an act of Congress authorized the President to 
issue a new commission to a lieutenant, the efi"ect of which would be 
to give liim a precedence over 24 other officers, held that such 
legislation was within the power of Congress, which was the sole 
judge as to its expediency. And lield that the giving of autjiority in 
such case being one in which individual rights were concerned, was to 
be construed as a reauirement upon the President,^ P. 58.. 309, 
March, 1893. 

1 By sec. 4 of the act of July 27, 1892 (27 Stat. 278), "judge advocates of departments 
and of courts-martial, and the trial officer of summary courta, are * * * authorized 
to administer oaths for the pm-poses of the administration of military justice, and for 
other purposes of military administration." 

^ See sec. 1228, R. S. 

^ Promotion by seniority is now required by the act of Oct. 1, 1890 (26 Stat. 562). 

* See 14 Ops. Atty. Gen., 2, 164 and 499. 

* Supervisors v. U. S., 4 Wallace, 435. 

WTiere there are two or more offices of the same grade in a corps, each requiring a 
separate commission, on a vacancy the appointing power may appoint the senior of 
the next lower grade to either. 17 Op. Atty. Gen., 465. 



804 OFFICE ill B 3 a. 

Ill B 3 a. In the case of an appointment to a vacancy which 
leads, by promotion, to higher grades of rank in the military estab- 
lishment, lield that the office vests in the appointee when the appoint- 
ing power has been fully exercised in respect thereto.^ C. 15262, 
Sept. 8, 1903; 19425, Mar. 17, 1906. 

Ill B 3 a (1). In cases ©f promotion an office vests on the date of 
the appointment or commission on condition always that tlie appoint- 
ment or commission is thereafter accepted. In the case of an officer 
who died before the Senate had confirmed his nomination to an office 
by promotion, held that due to the death of the officer and the conse- 
quent lack of an acceptance of the office, the office had not vested.^ 
C. 28369, May 19, 1911; 7050, Oct. 6, 1900; 12599, May 12, 1902; 
16732, Aug. 17, 1904; 19650, May 8, 1906; 16359, Dec. 28, 1911. 
Held, that the office does not vest witliout acceptance even if the 
appointment had been conffi-med by the Senate.^ C. 16359, Dec. 28, 
1911. 

Ill B 3 a (2). A vacancy in the list of lieutenant colonels occurred 
March 1. The President could, March 1 and on each successive date, 
have appointed the senior major to the vacant lieutenant colonelcy. 
He did appoint him a lieutenant colonel March 11. Held that the 
major became fully invested with the new office of lieutenant colonel 
March 11. Had specihc duties been attached by law to the office of 
lieutenant colonel and had a penalty been imposed by law for non- 
performance, no duty of performance would have been required of 
the major prior to the vesting of the office of lieutenant colonel, 
March 11; nor in the event of nonperformance would he have been 
liable to the enforcement of the penalty. C. 144'^^, Apr. 11, 1903, 
and Apr. 9, 1906. 

Ill B 3 a (3). The nomination of a ffi'st lieutenant to the office of 
captam was made by the President to the Senate. The nommation 
was confirmed and a commission made out and signed. Before 
delivery, however, the President was made aware of certain charges 
against the moral character of the officer and the commission was 
not delivered. Held, that the law and the regulations governing 
the advancement of the officer had been fully executed; * that the 
office of captam had been fully vested in the officer and could only 
be divested by regular procedure. C. 22818, Apr. 21, 1908. 

Ill B 3 a (4) (a). Held, that where an officer whose right to pro- 
motion has accrued, in the operation of the act of October 1, 1890 
(26 Stat. 562), is obliged by reason of sickness to remain absent 
from the place where a board for his examination has been convened 
by the President, such sickness, when verified by the proper medical 

* A mere notification that an examination iias been passed, held sufficient as an 
appointment to office. (95 U. S., 760 ) In the case of Marbury v. Madison, the 
Supreme Court held that as to an officer who is not removable by the President, the 
signmg and sealing of a commission vested the office irrevocably in the officer, although 
the commission had never been delivered to him. 5 U. S. 50; and 12 Op. Atty Gen., 
365. 

2 That an appointment is complete when made out and signed by the appointing 
power, and confers on the appointee the right to the office, see Marbury v. Madison, 
1 Cranch, 1.37; U. S. v. Bradley, 10 Peters, 343; U. S. v. Le Baron, 1\) How , 73; Mont- 
gomery V. U. S.. 5 Ct. Cls., 93. The office, however, cannot be considered as filled 
until the appointee has, in fact, accepted it. (Mechem on Public Officers, sec. 247; 
Am. & Eng. Ency. of Law, 1st Ed., vol. 19, p. 437.) 

3 See 29 Op Atty. Gen., 254. Sept. 22, 19ll, for opinion on this case. 

* See Marbury v. Madison, o U. S., 137. 



OFFICE III B 3 a (4) (h). 805 

authorities, constitutes an exigency of tiie service within the meaning 
of section 32 of the act of February 2, 1901 (31 Stat. 756), and that 
such officer may therefore be hiwfuUy advanced to the next higher 
grade, subject to examination which shall take place as soon there- 
after as practicable. C. 23096, June 29, 1908. 

Ill B 3 a (4) (6). An officer was promoted under the provisions of 
section 32 of the act of February 2, 1901 (31 Stat. 756), witiiout 
exammation and the words ''subject to exammation " were written 
on his commission. After passing his examination he requested that 
a new commission be furnished him with those words omitted. Reld, 
tnat, as the office had vested, a different commission could not be 
issued to the officer without another exercise of the constitutional 
appointing power, of wliich the new commission would be the record. 
a 19267, Feb. 27,' 1906.^ 

Ill B 4, Held that it is a peculiarity in the status of assistant 
surgeons and lieutenants of engineers and ordnance that promotion 
to a higher grade results by operation of law from mere duration of 
service a,nd independently of any action by the appomting power. 
R. 43, 208, Feb., W80. 

Ill B 5 a. In the case of an ofiicer appomted to fill a vacancy 
which was to occur on a given date, the officer entered upon the 
duties of his office on the date of the vacancy but did not communi- 
cate his acceptance until four days later, when he requested that it 
be made eft'ective from the date he took up his duties, held, that the 
acceptance should be considered to date form the tune this office- 
holder actually entered upon the duties of his office. C. 27305, 
Sept. 27, 1910. 

Ill B 6 a. An officer of the Ime, on passing the examination for a 
vacancy m the Ordnance Corps, does not becomes an ordnance officer 
by a mere transfer. He must be appointed, confirnied, and com- 
missioned in the usual way. P. 37 . 156, Dec, 1889. 

Ill C 1. Prior to the approval of the act of January 25, 1907 (34 
Stat. 861), Lieut. D., an Infantry officer, effected a mutual transfer 
with Lieut. M., of tne ArtiUery Corps. The nominations to effect the 
transfer were conffi-med by the Senate on January 29, 1907, two 
days subsequent to the approval of the act reorganizing the Artillery. 
Held, that had there been no transfer the officer who exchanged 
with Lieut. D. would have been entitled to advancement in accordance 
with the terms of the reorganization bill; and it is clear that Lieut. D. 
succeeded to all the rights in that regard which vested in Lieut. M. 
when the reorganization act became operative. Held, that Lieut. D. 
may lawfully be regarded as entitled to the advancement which is 
conferred upon officers who were in the Artillery Corps at the date 
of approval of the act of reorganization. C. 21053, Apr. 9, 1907. 

Ill D 1. An officer of the line detailed for duty in a staff depart- 
ment in the operation of section 16 of the act of February 2, 1901 (31 
Stat. 751); becomes during such period of detail an officer of the 
staff department in which he is detailed. The vacancy created in 
the line of the Army by his detail has been fiUed by promotion, and 
during the period of such detail office in the staff is as fully vested 
in him as if his appointment in the department in which he is detailed 
were permanent; nis commission in tne line remains dormant, being 
superseded during his incumbency of office in the Quartermaster's 
Department or elsewhere by his detail to the staff. 



806 OFFICE III D T a. 

While so detailed he occupies precisely the same status in respect 
to the exorcise of command as other officers of the staff; that is, he 
can exercise command or control in his own department, but is, by 
the nature of his ofhce, inhibited from exercising command elsewhere 
in the military establishment save by assignment of the President. 
As the detailed ofhcer is during the period of such detail an officer of 
the staff, he is not entitled, as an officer of the line, to assume and 
exercise the connnand provided for in the one hundred and twenty- 
second article of war. C. I4OI8, Jan. 22, 1903. 

Ill D 1 a. A captain in the line of the Ai-my was detailed as a 
member of the General Staff on January 29, 1904. Held that office in 
the General Staff vested on the date of the order promulgating the 
detail, and that the statutory tour of duty teriuinated four years 
after the date of the order promulgating such detail. C. J.5844, «^<*^- 
^1 190 A' 22A.82 Dec. 2 1907. 

in D 1 b. The act* of February 14, 1903 (32 Stat. 830), provides 
that "all officers detailed in the General Staff Corps shall be detailed 
therein for periods of four years, unless sooner relieved." Held that 
the clause above cited places a restriction in point 'of time upon de- 
tails in the General Staff and forbids the employment of officers for 
periods differing from or in excess of those expressly provided by 
law. At the end of the statutory tour the further continuance of an 
officer ^n that form of staft' duty is without authority of law, and the 
Secretary of War becomes charged with the duty, largely ministerial 
in character, of issuing the necessary orders for his relief. Held, 
alse, that an officer who has been relieved from the General Staff prior 
to the expiration of four years' duty therewith, may be redetailed to 
complete an unexpired term, but such officer will become ineligible 
as soon as he shall have completed a total of four years of such duty. 
Held, further, that while serving in the General Staff Corps officers 
may be temporarily assigned to duty with any branch of the Army. 
C. 24868, Apr. 30, 1909. 

Ill D 1 c. An officer of the line, serving in the detailed staff, is 
eligible, while so serving, for detail in the General Staff"; this for the 
reason that section 3 of the act of February 14, 1903 (32 Stat. 831), 
which establishes the General Staff Corps, authorizes officers to be 
detailed to that corps from "the Army at large." 

Officers serving in the detailed staff, equally with officers of the 
line and staff", constitute the Army at large, and, for that reason, are 
eligible for detail in the General Staff. C. 201 40, July 26, 1906. 

Ill Did. The detail of a lieutenant colonel in the Inspector 
General's department bemg about to expire, his redetail in the same 
department is asked for; lield that the case comes within the except- 
ing clause of section 26, act of February 2, 1901 (31 Stat. 755), the 
officer not being below the grade of lieutenant colonel, and that his 
redetail in the same department would be lawful. C. 22393, Nov. 
20, 1907. 

Ill D 2 a. In construing those sections of the act of February 2, 
1901 (31 Stat. 748), which established the detail system as a method 
of filling vacancies in the several staff" departments of the Army, and 
of the act of February 14, 1903 (32 Stat. 830), which estabhshed the 
General Staff, it was held that when the right of a detailed officer to 
promotion in the line has accrued, such promotion involves his sepa- 
ration from the staff department in which he happens to be serving, 



OFFICE III D 2 b. 807 

because his retention on the staff would cause the number of staff 
officers in the higher grade to be increased by one, which is forbid- 
den by the requirement that the number of officers in each particular 
grade of the department in which he is detailed shall consist of the 
number expressly stated, and no more. C. I0OO4, July 23, 1903; 
15686, Jan. 8, 1904; I08U, Jan. 21, 1904; 18515, Sept 5, 1905. 

Ill D 2 b. A second lieutenant of cavalry, while detailed in the 
Ordnance Department, was promoted to a first lieutenancy of cav- 
alry; lield that he was ineligible for a redetail in the ordnance, as he 
had not finished a four-year detail in that department. C. 15844, J(^'^- 
21, 1904; 18515, Sept. 2 and 5, 1905; 13942, Jan. 13, 1908. 

Ill D 3. Held, that the requirements of sections 26 and 27 of the 
act of February 2, 1901 (31 Stat. 755), are directory in character, 
and that an officer detailed to the staff upon the existence of an emer- 
gency which, in the opinion of the Secretary of War, requires a resort 
to that course, may be relieved from his assignment and may be 
replaced by an officer of the same arm of service having similar qual- 
ifications. C. 11466, Feb. 11, 1902. 

Ill D 4. The fact that an officer is servuig by detail in a staff 
department does not operate to prevent him fi-om eftectmg a transfer 
as a line officer with an officer of equal grade in the Ime of the Army. 
C. 21783, July 12, Aug. 22, 1907, Jan. 29, 1909. 

Ill E 1. Paragraph 2, section 2, Ai-ticle II of the Constitution pro- 
vides that "Congi-ess may by law vest the appomtment of such infe- 
rior officers as they think proper in the President alone, in the courts 
of law, or in the heads of departments." Section 1 of the act of Feb- 
ruary 2, 1901 (31 Stat. 748), provided for the organization of a regi- 
ment of cavalry. In the enumeration it includes two veterinarians. 
Section 20 of the same act provided that the two veterinarians author- 
ized for each cavalry regiment and the one authorized for each artil- 
lery regiment should receive the pay and aUowances of second lieu- 
temants mounted. Held, that veterinarians are actual incumbents 
of military office; that they are inducted into such office in the opera- 
tion of ajppointments by the Secretary of War; that they are not 
commissioned officers as they are not appointed by the JPresident. 
Held, further, that they are appointed under the provision of the 
Constitution cited above by the Secretary of War. C. 8587, Oct. 10, 
1910; 10566, Nov. 6, 1909. And when on duty at the Service School 
are entitled to leaves as authorized for officers. C. 17388, May 26, 
1910. 

Ill E 2, Held that paymasters' clerks in the Army are inferior 
officers of the type that are appointed by the Secretary of War under 
paragraph 2, section 2, Article II of the Constitution.^ C. 10603, 
July 7 and Oct. 7, 1911. 

in E 3. The office of master of the sword was created bv the acts 
of May 10, 1854 (10 Stat. 277), March 2, 1901 (31 Stat. 914), and 
March 3, 1905 (33 Stat. 850). Held that the incumbent is appointed 
by the Secretary of War. C. 18009, Mar. 23, 1910. 

1 See 27 Op. Atty. Gen., 493, and U. S. v. Hartwell (73 U. S., 385). See G. O., 103 
and 143, W. D., series 1911. 

Paymasters' clerks in the Navy wear a uniform, have a fixed rank, and are held by 
the United States courts to be a part of the Navy and amenable at all times to trial by 
naval courts-martial. See Ex parte Reed, 10 Otto, 13; In re Bogart, 2 Sawyer, 396; 
United States v. Bogart, 3 Benedict, 257. But see Ex parte Van Vranken, 47 Fed. 
Rep., 888. See aWCir. 53, W. D., July 31, 1909. 



808 OFFICE III F 1. 

Ill F 1. While, as provided in section 1228, R. S., an officer duly 
dismissed from the army hy sentence of court-martial can be restored 
to it only by a new appointment; so, e:5:cept by a new appointment, 
the President can not restore an officer separated from the Army 
otherwise than by sentence, viz, by summary dismissal by order, or by 
being "wholly" retired, or by the acceptance of a resignation. Thus 
separated, the officer is made a civilian as eflectually as if he had been 
dismissed by sentence; and, as to a readmission to the service, he is 
in }>recisely the position of a civilian who has never been in the Army 
at all. He can therefore be admitted to it only in tlie mode pointed 
out in the Constitution (Art. II, sec. 2, par. 2). A revocation of the 
order by which he was dismissed or wholly retired, or of the acceptance 
of his resignation, must (after notice) be quite futile and ineffectual. 
An order purporting to revoTce a previous order by wMch an officer 
has been legallv detached from the military service is a simple nullity. 
R. 35, 466, July, 1874; 37, 461, Apr., 1876; 39, 474, Mar., 1878; 
41,611, July, 1879. 

III G. The Regular Army was mainly distinguished from the other 
principal contingent of the Army of the United States during the 
Civil War — the volunteer force — by the fact that the tenure of office 
of the officers of the former was not in general limited, eitlier expressly 
or by implication, to the period of the war. An unlimited tenure, 
however, is not a necessary or invariable incident of office in the 
Regular Army. The 11 new regiments, for example, added to the 
Regular Army by the act of July 29, 1861, were "declared to be for 
service during the existing insurrection," etc. R. 34, 4^9, Sept., 1873. 

IV A 1 . It is a rule of law that when a person holding one office 
enters upon another, a perlormance of the duties of which is incom- 
patible with the performance by him of the duties of the first, he 
abandons and vacates tlie first office in entering upon the second.* 
P. 40, 153, Aj>r., 1890; 66, 161, Oct. 1, 1892. 

IV A 1 A. A second lieutenant of Cavalry received and accepted 
a recess appointment as a first lieutenant of Artillery. On receiving 
notice of his confirmation by the Senate, he asked if he might decline 
his office in the Artiller}'' and revert to that held in the Cavalry. 
Held, that by accepting office in the Artillery arm he had vacated his 

^ In the absence of a statutory prohibition a person may hold two distinct offices, 
places, or employments which are not incompatible, and receive the compensation 
attached to each. Converse v. U. S., 62 U. S., 463; 75 U. S., 33; 99 U. S., 510; U. S. 
V. Brindle, 110 U. S., 688; TJ. S. v. Saunders, 120 id. 126; Meit^s v. U. S., 19 Ct. Cls. 
497; 5 Op. Atty., Gen. 768; 19 id. 283; 3 Comp. Dec. 432; 4 id.'llS; 5 id. 9; 6 id. 284, 
683. But the services for which extra compensation is allowed must, under the 
statutes, be such as have no connections with the duties of the officer and must be 
rendered under an appointment or employment. Converse v. U. S., 21 Howard, 463; 
U. S. V. Saunders,_120 U. S. 126; 19 Op. Atty. Gen., 283; 5 Comp. Dec. 9; 6 id. 284, 683. 

Two offices are iacompatible when a performance of the duties of the one will pre- 
vent or conflict with the performance of the duties of the other, or when the holding 
of the two is contrary to the policy of the law. See Crosthwaite v. U. S., 30 Ct. Cls. 
300. Reversed on other gi-ounds 168 U. S. 375. But when an incumbent of an office 
accepts a position incompatible with the one held by him, the acceptance of the new 
position is an abandonment or resignation of the office theretofore held. Digest of 
2d Comp. Dec, Vol. II, pars. 728, 729, 730. 

In peace an officer may cease to be a member of the Army by death, resignation, 
dismissal imder sentence of general court-martial, absence without leave or absent 
in confinement in prison after conviction for three months; failure on examination for 
promotion; retirement (wholly) on disability not incident to service, by nomination 
and confirmation of successor. 



OFFICE IV A 2 a. SOO 

office in the Cavalry and that there remained no mihtarv office to 
which he could revert.^ C. 2266S, Jan. 25, 1908. 

IV A 2 a. Section 1222, R. S. (act of July 15, 1870) (16 Stat. 319),2 
provides that — "No officer of the Army on the active list shall hold 
any civil office, whether by election or appointment, and every such 
officer who accepts or exercises the functions of a civil office shall 
thereb}^ cease to be an officer of the Army, and his commission shall 
be thereb}^ vacated." Held that this provision was an exercise by 
Congress of its constitutional power "to raise armies," which includes 
the power to determine of whom they shall consist.^ R. 30, 556, 
Aug., 1870; 35, 54, Dec, 1873. 

IV A 2 b. The words "exercises the functions of a civil office" 
were used in section 1222, R. S., in order that it might not be neces- 
sary to prove in every case that an officer of the Army entering upon 
a civil office had qualified according to aU the formalities of the law, 
but, rather, that the holding of the office whether by formal qualifica- 
tion or otherwise should have the efi'ect of vacating his commission 
in the Arm}^. "Exercising the functions of an office" means some- 
thing more than merely transacting some of the business of an office 
as the agent of some one else; it means transacting the business by 
virtue of holding the office. Thus where an officer on the active list 
of the Arm}", after having had conferred upon him by a governor of 
a State the honorary title of colonel and assistant adjutant general 
in the State militia, took temporary charge of the adjutant general's 
office of the State at the request of the governor, during the absence 
of the adjutant general, held that such action on the part of the officer 
did not amount to the acceptance of a civil office.* C. 272, Sept., 1894- 

IV A 2 c. By "civil office" as the term is used in section 1222, 
R. S., is meant civil public office. P. 62, 420, Nov. 29, 1893. Held, 
that to bring an office within the prohibition of section 1222, it is 
necessary that the civil office held by an oflicer of the Army should 
be one created by Congress or by a State or miuiicipality. C. 23931, 
Oct. 3, 1908, aiid Sept. 13, 1911; 19979, July 3, 1906. Held, that 

^ See 20 Op. Atty. Gen., 427, where Attorney General Miller held that the accept- 
ance of an appointment as Chief of the Record and Pension Office, War Depai'tment, 
by a surgeon of the Army created a vacancy in the latter office, the offices being held 
to be inconsistent. 

And where an appropriation was made for ' ' the pay of one assistant professor " of the 
Military Academy, the act providing for the appomtment of such professor in addition 
to those theretofore authorized. Attorney General Olney held that as tlie term of the 
new office would not begin until the next fiscal year, the acceptance of the appoint- 
ment thereto by an officer of the Army would not vacate his office until the term of the 
new office actually commences. 20 Op., 593. In a decision of the Comptroller the 
positions of "acting judge advocate and aid to a major general" were held to be 
"incompatible, and an officer is not entitled to the additional pay of both positions 
at the same time." (V Comp. Dec, 971.) 

An acting judge advocate can not hold the position of A . D. C. (VComp. Dec, 971.) 

2 Applies to Federal and State offices, and to those for which no compensation ia 
provided as well as to those for which compensation is allowed. 13 Op. Atty. Gen., 
310. 

See 22 Op. Atty. Gen., 88, June 10, 1898, in which it is held th&t section 1222, R. S., 
does not apply to office in the Volunteers. See 29 id. 298, Jan. 31, 1912, in which he 
held that sec. 1222, R. S., does not apply to office in the Organized Militia. 

^ See United States v. Bainbridge, 1 Mason, 71; In re Riley, 1 Benedict, 408. 

* See 29 Op. Atty. Gen., 298, Jan. 31, 1912, in which he holds that sec. 1222, R. S., 
does not prevent an officer on the active list of the Army from holding and exercising 
the functions of office in the Organized Militia. • 



810 OFFICE IV A 2 C (l). 

the term '* civil office" embraces not only Federal, State, Territorial, 
and municipal office, but also certain cases of public civil employ- 
ment. C. 18017, Dec. 6, 1911. 

IV A 2 c (1). Held that the term civil office employed in section 
1222, R, S., included Federal, State, county, or municipal office. R. 
36, 477, May, 1876; 65,601, Apr., 1888. So ^^Z^ that an officer of 
the Army could not, without thereby vacating his military office, 
accept or exercise the office of park commissioner of the city of 
Philadelphia {R. 30, 655, Aug., 1870) ; 0. 19360, Mar. 2, 1906; or of 
trustee on the board of trustees of the Cincinnati Southern Railroad ^ 
{R. 38, 31, Mar., 1876); these being offices created by State statute. 
So held that a medical officer of the Army could not accept the office 
of a county physician, and retain his military office. R. 36, 477 . 
Similarly held that membershij) on the ''River Commission for Mobile 
River and Branches" is a civil office. R. 65, 501, 1888. Similarly 
held that the "assistant to the postmaster" at Mescalero, N. Mex., 
can not be filled by an Army officer without vacating his commission. 
C. 1854, Nov., 1896. Similarly held that membership on the "Inter- 
national Boundary Commission" is a civil office, and that an officer 
on the active list could not, without vacating his commission, become 
a member of such commission.^ C. 2236, Apr., 1896. Similarly 
held that an officer on the active list can not hold the office of "assist- 
ant to the Deputy Commissioner of Indian Affairs," without vacating 
his commission. C. 2789, Dec, 1896. 

IV A 2 c (1). Held that the position of a member of the sanitary 
commission of Honolulu is a "civil office" within the meaning of 
section 1222, R. S., and can not be accepted b)^ an officer on the active 
list without placing in jeopardy his commission as an officer of the 
Army. C. 18017, Apr. 28, 1911. 

IV A 2 d (1). Where under the laws of a State the superintendent 
and commandant of a military school are entitled to military com- 
missions in the militia of the State, such commission not to carry pay 
or rank or command outside of the school, held that the acceptance of 
such commission by an officer of the Army detailed to the school did 
not come within the prohibition of section 1222, R. S. C. 26242, 
July 7, 1909. Held, further, that section 1222, R. S., does not prevent 
an officer on the active list of the Regular Army from accepting a 
commission in the Organized Militia, as such office is not civil office.^ 
a 29273, Dec. 2,1911. 

IV A2 d (2). On the question of whether an officer of the Army 
could, without vacating his commission (sees. 1222 and 1860, R. S.), 
hold a civil office in the Philippines, held that in those sections of the 
Philippines which are still under the jurisdiction of the Philippine 
Commission, in contradistinction to the remainder, which is under the 
joint jurisdiction of the commission and the Philippine Assembly, an 
officer of the Army could hold civil office, as the commission is but a 
continuation of the government of military occupation; and under 
the latter officers who hold civil office are doing military duty. C. 
25629, Sept. 30, 1909. 

^ Concurred in by the Solicitor General, 15 Op. Atty. Gen., 551. 
- See joint resolution of Dec. 12, 1893 (28 Stat., 1017), which authorized a specially 
named officer to serve as a member of that commission. 
3 Concurred in by the Attorney General Jan. 31, 1912; 29 Op. 298. 



OFFICE IV A 2 d (2) (a). 811 

IVA2d(2) (a). Where the Philippine Government liad turned 
over to an officer of the Army a sum of money to be expended in 
connection with an exhibit at the World's Fair, held that the accept- 
ance of the money by the officer did not serve to create him a civil 
officer of the Philippine Government.^ C. 17667, Feh. I4, 1907. 

IV A 2 d (2) (6). On the question of whether the law of the Philip- 
pine Islands which gives to certain officers of the Army the powers of 
a justice of the peace in so far as is needed in certain cases involving 
the traffic in liquors, brings such offices within the prohibition con- 
tained in section 1222, R. S., lield, that it does not. C. 14939, July 
13, 1903. 

IV A 2 d (3). Section 10 of the act of April 22, 1898 (30 Stat. 363), 
provides, inter alia, that "the staff officers herem authorized for the 
corps, division, and the brigade commanders may be appointed by 
the President, by and with the advice and consent of the Senate as 
officers of the Volunteer Army, or may be assigned by him, hi his 
discretion, from officers of the Regular Army, or the Volunteer Ai-mj^, 
or of the militia in the service of the United States : Provided, that 
when reUeved from such staff service said appomtments or assign- 
ments shall termmate." Held, that the acceptance of an assignment 
as provided for here would not vacate a Regular officer's commission. 
Held further, that a nomination and conffi-mation is not required in 
the case of Regular officers so "assigned." C. 4H9, May 19, 1898. _ 

IV A 2 d (3) (a). Held, that m the absence of statutory authority 
the President can not appoint a Regular officer to office m any vol- 
unteer force that mav be called out from the District of Columbia. 
C. 4119, May 12, 1898. 

IV A 2 e. Held, that a surgeon can accept a position as teacher m 
a medical college, which is a private institution. C. 18017, Oct. 23, 
1909. Held, also, that a surgeon may be assigned for duty in the office 
of the head of the Department of Health of Porto Rico, and that the 
health conditions of the Army and of the people of Porto Rico are so 
interdependent that there exists a sufficient military motive to sup- 
port the detail. C. 18017, Mar. 16 and June 8, 1911. 

Held that an Ai-my surgeon could, without vacatmg his commission 
under section 1222 R. S., accept appointment as an honorary member 
of the Porto Rico anemia commission, as such membership does not 
embrace the idea of tenure, duration, fees or emoluments, rights, powers 
or duty.2 C. 18017, July 28, 1906. 

IV A2 e (1). A resolution of the board of supervisors of the city 
and county of San Francisco empowered an engineer officer of the 
Army, with others, to devise and provide a system of sewerage for 
that city and county. Held that such officer, in accepting, would 
not be appointed to a civil office in the sense of section 1222, R. S., 
but would be simply employed (with the approval of the Secretary 
of War) to perform a certain temporary service. The case distin- 
guished from that of Col. Gillmore, Corps of Engineers.^ P. 54, 64, 

1 See Carrington v. U. S., 208 U. S., 1. 

2 See U. S. V. Fisher (8 Fed. Rep., 414); U. S. v. McCroy (91 id. 295); IS Op. Atty. 
Gen., 551. 

^ Col. Gillmore's case referred to is reported in 18 Op. Atty. Gen., 11. And see 
Gen. Meade's case in 13 id. 310; also case in 16 id. 499. Compare the still more recent 
opinion of the Attorney General, in 20 Op. 604. 



812 OFFICE IV A 2 e (2). 

June, 1892; C. 23931, Oct. 1, 1908, and Sept. 13, 1911; 19976, July 3, 
1906. 

IV A 2 e (2). A State statute authorized the employment, by the 
board of water commissioners of a city, of a person as an engineer, 
and the position was offered to an engineer officer of the Army ; held, 
that such officer, in accepting the same, by the authority of the 
Secretary of War, would not be affected by the provision of section 
1222, E,. S.; such a position being in fact, as it was designated in 
terms in the statute, an employment merely, and one of a temporary 
and incidental character, and thus properly distinguished from an 
office. R. 37, 64O, May, 1876. And similarly held, later, in regard to 
the emplo3'ment of the same officer (under a similar statute) as a 
consulting engineer to the State engineer; the function of the latter 
being the office established by the statute, wliile that of the former 
was but an incidental employment. R. 4-3, 307, May, 1880; 52, 271, 
June, 1887; C. 19979, Juhj 3, 1906. 

IV A 2 e (3). There can be no objection to an olficor investing his 
private funds as he pleases; it follows that he may lawfully invest 
them in the securities of an incorporated company, even though that 
company may at some time stand in the relation of a vendor to a 
department of the Government. So, also, an officer may serve as a 
director in a business corporation, provided the performance of his 
military duties is not impaired or prevented by such service.^ 0. 
22765, Feb. 17, 1908. 

IV A 2 e (4). So, also, an officer of the Medical Corps may render 
medical services to the prisoners in a jail in the neighborhood of his 
post; such service being purely contractual.^ C. 27213, Aug. 29, 
1910. 

IV A 2 e (5). Held, that an engineer officer of the Army may 
accept employment as consulting engineer of the Board of Estimate 
and Apportionment of the City of New York. C. 25912, Dec. 7, 1909. 

IV A 2 6 (6) (a). The only prohibition in the matter of Army 
officers holding civil office is that embodied in section 1222, R. S. 
That proliibition forms part of the act of July 15, 1S70 (16 Stat. 319.), 
which accomplished a reduction in the strength of the military estab- 
lishment after the increase of January 28, 1866. Held, that is 
obviously applied to civil office within the territorial and legislative 
jurisdiction of the United States and of Congress, and had no appli- 
cation to the performance of civil duties by officers of the Army in 
occupied territory. This for the reason that military occupation is an 
incident of command and so comes mthin the plenary and exclusive 
jurisdiction of the President as commander in chief, and under ordi- 
nary circumstances had application to foreign territory — ^i. e., to 
territory which has not yet been incorporated into that of the United 
States. C. 5771, Feb., 1899; 20396, Apr. 17, 1908. Thus, assignments 
of officers of the Army to be collectors of customs in Cuba and Porto 
Rico, when under military occupation, were assignments to military 
duty and not to civil offices mthin the meaning of section 1222 E.. S. 
C. 5771, Feb., 1899. Held, that officers so assigned may not receive 

1 See 7 Opins. Atty. Gen., 156. 

^ An Army surgeon is entitled to remuneration for services rendered as physician 
at an Indian agency. Digest of 2d Oomp. Dec, Vol. Ill, pars. 389 and 636; 120 
U. S., 126. 



OFFICE IV A 2 e (6) (h) [l]. 813 

additional compensation for the execution of such duty. C. 5771, 
Feb. 2, 1899. 

IV A 2 e (6) ih) [1]. A battahon adjutant of the Thirty-third 
United States Volunteer Infantry was assigned to duty with the 
superintendent of police of the city of Manila by the commanding 
general of the Philippines Division, that place during the period of 
such employment being in the military occupation of the United 
States. Held that there can be no doubt of the power of the Pres- 
ident, or the Secretary of War as his representative in the conduct 
of military affairs, to assign any officer of the Army to any duty fall- 
ing properly within the scope of his office. A colonel, a major, or a 
captain, in any branch of the line, or in any department of the staff, 
may, by the order of the President, or of a competent military supe- 
rior, be detached from the duties of his office and assigned to duty 
elsewhere in the Military Establishment ; and, while so detached, it 
has never been the practice of the department to require any deduction 
to be made from the salary to which he is entitled by law. Pending 
the detached service of the mcumbent, the duties attached to such 
office are performed by a successor in command or by an officer duly 
detailed for that purpose. An order assigning an officer to the tem- 
porary performance of the duties of another military office would be 
a lawful military order, which the officer to whom it was addressed 
would disobey at his peril; and during such temporary incumbency 
the detailed officer, even though exercising the functions of a higher 
grade in the Military Establishment, would not become entitled to 
higher pay, unless expressly thereto authorized by law; as, for exam- 
ple, in the case provided for in the act of April 26, 1898. Nor, on 
the other hand, would the detached officer undergo any reduction of 

Eay, or be deprived of any of the emoluments to which he is entitled 
y law, as a consequence of his temporary detachment from his office 
to perform the duties of another office in the Military Establishment. 
What has been said in regard to the power of the President to 
assign an officer to duty in connection with the ordinary administra- 
tion of the Military Establishment, applies with equal force to his 
authority to assign an officer to duty in connection with the admin- 
istration of the military government of the Philippine Islands, which 
grew out of the fact that, at the time such assignment was made, 
those islands were in the military occupation of the United States. 
It seems hardly necessary to trace the authority for the assignment 
of an officer to any duty wliich he was considered capable of perform- 
ing in connection with the military occupation of the city of Manila. 
The right to employ military officers upon such duty, in territory in 
the military occupation of the United States, has never been doubted.^ 
C. 16906, Sept. 26, 1904. 

IV A 2 e (6) (b) [2]. A lieutenant of Infantry held the position of 
inspector of constabulary. The question was raised as to whether 
or not his occupation of that position vacated his office under the 
provisions of section 1222, R. S. Held that in view of the fact that 
the Philippine Constabulary is a military organization and is under 
the Department of War, the officer in C[uestion did not occupy a civil 
office within the meaning of section 1222, R. S., which is a penal 

* Cross v. Harrison, 16 How. 189-193; Jecker v. Montgomery, 13 id. 515; Texas v. 
White, 7 Wall., 700. 



814 OFFICE IV A 2 e (e) (b) [3]. 

statute and must be strictly construed, but was merely executing a 
duty to which he had been properly detailed. Held further that he 
was subject to control only through the line of command extending 
through the Chief of Constabulary to the Secretary of War.^ C. 
22400, Nov. 21, 1907; 24236, Dec. 21, 1907; 23328, May 27, 1908; 
25629, Sept. 30, 1909. 

IV A 2 e (6), Q)) [3]. A captain of Infantry was assigned to duty 
by the Secretary of War with the Governor General of the Philippine 
Islands. Held that the consitutional authority of the President to 
command the Army does not extend to detaching officers for the 
performance of purely civil duties, and that details of this latter 
character must be specially authorized by Congress. It is not 
believed, however, that this case presents any question of detail to 
civU duties. Under the scheme of government - provided by Con- 
gress for the Philippine Islands special provision is made for the use 
of the military forces of the United States in preserving order and 
in dealing with emergencies beyond the power of the civil officials 
to control. Congress has thus recognized that in the administra- 
tion of public affairs in the Philippine Islands the closest cooperation 
of the military authorities and the civil government is necessary; 
and it seems to have been the opinion of the Secretary of War and 
the civil governor of the Philippine Islands that this cooperation 
could be facilitated by the detail of a military officer upon the staff 
of the latter. In this view an officer who has been so detailed is to be 
regarded as being detailed for duty with the civil governor for the 
performance of important military duties. His status under such 
detail is that of an officer on detached service performing military 
duties under the direction of the civil governor. C' 20251, Aug. 21, 
1906. 

IV A 2 6 (7). The detail of a captain of Engineers was proposed as 
an "associate member" of the International Boundary -Commission 
(United States and Mexico). Held that office in such commission 
was created by treaty and that it is beyond the power of the Execu- 
tive to create the office of "associate member" of such -commission. 
Suggested that the officer be assigned to advisory duty in connection 
with the commission, such duty being military, and not inconsistent 
with the office held by the captain of engineers as a member of the 
Military Establishment.^ C. 2236, Apr. 26, 1896. 

' TheactofthePhilippine Commission of July 18, 1901, providing for the organiza- 
tion and government of a force of Philippine Constabulary and for a corps of inspec- 
tors for the same was approved, ratified, and confirmed by the act of July 1, 1902 (32 
Stat. 691). The act of July 1, 1902, also provided for the further temporary govern- 
ment of the Philippine Islands under the Department of War. It also provided that 
all laws thereafter passed by the government of the Philippine Islands should be 
reported to Congress, which reserved the power and authority to annul the same. 
Congress later in the act of Jan. 30, 1903 (32 Stat. 783), specifically recognized the 
Philippine Constabulary as an existing force, duty with which was fit and appropriate 
for an Army officer, and created and bestowed additional rank upon such officers of 
the Army as should be detailed for service as chief and assistant chief of constabulary. 
The governor of the Philippine Islands thereafter requested the detail of a Regular 
officer for assignment to duty as chief of the corps of inspectors. The detail was ap- 
proved by the Secretary of War Feb. 25, 1904, and published in par. 4, S. O. 75, War 
Department, Mar. 30, 1904. This order directed the officer to report to the governor 
of the Philippine Islands for duty in inspecting the constabulary of the islands. That 
procedure has since been followed in the matter of detailing officers to duty with the 
government of the Philippine Islands. 

^ See opinion of the Attorney General of May 5, 1910 (28 Op. Atty. Gen.j 270). 



OFFICE IV B 1. 815 

IV B 1. Held that an officer of Engineers detailed by the President 
to perform, or assist in, engineermg work, for State or municipal 
authorities, at their request, could not be said to exercise a civil 
office, and was thus not affected by the provision of section 1222, 
R. S., the only question to be determmed in cases of such employ- 
ment being that mdicated by section 1224, viz, whether such work 
would require the officer to be separated from his corps or otherwise 
interfere with the performance of his military duties proper.^ 
R. 37, S40 and 542, May, 1876; 52, 271, June, 1S87. 

IV B 2. Held, in view of the provisions of section 1224, R. S., that 
an officer of the Army could not legally be detailed in the service of 
''The World's Exposition of 1892," which is a corporation, nor upon 
''civil works" under the "World's Columbian Commission," which is 
not a corporation. And advised- that, irrespective of the statute, to 
assign an officer of the Army to a duty which must, entirely or in great 
measure, and for any considerable period, separate him from the mili- 
tary duty for which Congress has authorized his employment and his 
pay, would, in the absence of statutory sanction, be unauthorized. 
P. 49, 211, Se^t, 1891. AlsofurtherAeW, in view of section 1224, R.S., 
that an officer of the Army could not legally be detailed to inspect 
the buildings in the course of construction for the W^orld's Columbian 
Exposition, since such inspection would be an employment "on civil 
works," and would require his separation from his corj^s and interfere 
with the performance of his military duties.^ P. 49, 245, Sept., 1891. 

IV C. An office was vacated by the appointment of a successor; 
held, that it was vacated on the date when the successor took rank. 
Held, further, that if no date of rank was stated in the nomination 
that the successor took rank from date when the appointing power 
in liis case was completely exhausted, i. e., on the date when the 
President signed his commission.^ R. 55, 546, Apr., 1888; P. 24, 
7, Apr., 1888; C. 17480, Feb. 2 and Alar. 13, 1905. 

IV D 1. A mere offer to resign or tender of resignation is revocable 
at any time before acceptance. C. 25005, Jan. 4, 1910. But after 
an acceptance, and before effect has been given to the same by 
notice, the offer can not be mthdrawn or materially modified by the 
act of the officer alone, but the consent of the appointing power is 
also necessary. R. 39, 375, Jan. 5, 1878. C. 12732, June 5, 1902; 

1 It is held by the Attorney General (16 Op., 499) that while to detail an officer 
of the active list for duty with Prof. King on the U. S. Geological Survey would not 
he to invest him with a civil office, yet that, as such survey is a civil v>ork., an officer 
could not, in view of the provisions of section 1224. R. S., legally be detailed for 
duty thereon if the effect of such det-ail would be to separate him from his regiment, 
corps, etc., or otherwise interfere with the performance of his military duties proper. 
See also 8 Op. Atty. Gen., 325. 

See 28 Op. Atty. Gen., 270, where it is held that the President has power to detail 
officers of the Engineer Corps of the Army to act as experts at a hearing involving the 
granting of a permit to the city and county of San Francisco to use the Hetch-Hetchy 
\'alley, in the Yosemite National Park, for maintaining a water supply for municipal 
purposes. 

2 Compare case in 19 Op. Atty. Gen. 600. Congress, subsequently, by act of Aug. 
5, 1892, expressly authorized the Secretary of War to detail at his discretion officers 
of the Army "for special duty in connection with the World's Columbian Exposition." 

3U. S. V. Kirkpatrick, 22 U. S., 733, 1824; Blake v. U. S., 103 U. S., 227, Oct., 
1880; Keys v. U. S., 109 U. S., 336, Nov. 26, 1883; also 16 Op. Atty. Gen., 298, and 
20 id., 427. 

As to 2 persons holding the same office pending notice of appointment of successor, 
see 7 Op. Atty. Gen., 303; I Comp. Dec, 576; 3 id., 249. 



816 OFFICE IV D 2. 

15493, Nov. 13, 1903; 15767, Jan. 12, 1904; 16183, May 7, 1904; 18318, 
July 18, 1905; 18851, Nov. 20, 1905; 2170, Aiw., 1896; 23448, June 
18, 1908. 

IV D 2. While a tender of his resignation by an insane officer is 
in general without legal effect and incapable of being legally ac- 
cepted/ yet where a resignation tendered by an insane officer was, 
in the absence, at the War Department, of any knowledge of his 
insanity, formally accepted, and the vacancy created by the resigna- 
tion was thereupon filled, lield that the acceptance could not legally 
be revoked, and that the appointment to the vacancy was valid 
and operative.^ R. 39, 420, Feb., 1878. 

IV D 3. Held that a resignation without date placed in the hands 
of superior authority as an inclosure to a pledge given by an officer 
who authorized superior authority to complete the resignation by 
supplying the date is a valid tender of resignation on condition sub- 
sequent. Held, further, that upon the occurrence of the condition 
the resignation mav be accepted,^ C. 18851, Nov. 21, 1905; 25005, 
Jan. 4, 1910. 

IV I) 4. An officer deserted and went to Canada. From that 

f)lace he tendered his resignation before he had been absent without 
eave three months. Held that as he was in desertion it would not 
be proper to accept his resignation. Held, further, that in view of 
the fact that he was outside of the limits of the United States, the 
statute of limitations did not run in his case, and that at the first 
opportunity he should be apprehended and tried as a deserter. 
C. 24233, Dec. 22, 1908. 

IV D 5 a. The right of an incumbent of military office to resign his 
office at pleasure is subject to certain restrictions growing out of the 
military status. Thus the resignation of an officer under charges 
need not be acceyjted. Similarly the resignation of an officer in 
time of war may properly be refused. R. 14, 129, Feh. 8, 1865; C. 
16183, May 7, 1904. 

IV D 5 b. The acceptance of a resignation is an executive act 
which may be exercised by the President through any proper officer 
selected by him, as by a military commander in the field in time of 
war. P. 54, 205, June 25, 1892. 

IV D 5 c. An officer may vacate an office by resignation. Held 
that the date of vacation is the date of the notification to the officer 
of the acceptance of his resignation.* R. 42, 68, Dec, 1878; C. 15493, 
Nov. 13, 1903. 

IV D 5 c (1). A notice to an officer that his resignation has been 
accepted may be either actual or constructive. Unless there is 
something to indicate the contrary, it is presumed that when the 
acceptance of the resignation has been forwarded in the regular way 
to an officer's regiment or station it reached its destination and was 
delivered to the officer affected thereby if he was present. Held 
that if he is absent without authority the receipt at his proper station 
of the notice of the acceptance of his resignation is a constructive 

1 6 Op. Att3(. Geu., 456; 10 id., 229; 12 id., 557. 

2 See, to a similar effect, 15 Op. Atty. Gen., 469. 

3 12 Op. Atty. Gen., 555. See Mimmack v. U. S., 10 Ct. Ols., 584, and id., 97 U. S., 
426. 

* See forty-ninth article of war. See also Barger v. U. S., 6 Ct. Cls., 35; Mimmack 
V. U. S., 10 id., 584; also 97 U. S., 426. 



OFFICE IV D 5 C (2), 817 

delivery to him. P. 36, 337, Nov., 1889; 42, 370, Aug., 1890; 50, 
458, Dec, 1891; C. 1289, Apr., 1895; 6409, May, 1899; 12732, June 
5, 1902; 15493, Nov. 13, 1903; 16183, May 7, 1904; 17696, Mar. 18, 
1905: 18318, July 18, 1905; 18851, Nov. 20, 1905; 19391, Mar. 19, 
1906; 2 W34, Mar. 23, 1908. 

IV D 5 c (2). An officer tendered his resignation and the President 
without formally accepting the resignation by letter appointed a 
successor. Held that the appointment of the successor was in effect 
the acceptance of the resignation and that the officer who tendered 
the resignation vacated his office when he received actual or con- 
structive notice of such appointment. C. 7251, Nov. I4, 1899, and 
Dec. 17,1901. 

VI D 5 d. Held that after an officer has been notified of the accept- 
ance of his resignation, a revocation of the acceptance will not operate 
to return him. to office. Held, further, that he can be returned to 
office only m the operation of a new appointment.^ C. 1289, Apr. 24, 
1895; 2321, May 26, 1896; 16183, May 7, 1904; 24583, Feh. 27, 1909. 

IV D 5 d (1). In the case of an officer whose resignation was 
accepted, to take effect at a future date, and who, after receiving 
notice of the acceptance but before the date fixed, attempted to 
withdraw the resignation, held, that the withdrawal should not be 
considered in connection with the resignation, as the serving of 
notice on the officer of the acceptance of his resignation had fixed 
his status beyond recall as that of vacating the office on the date 
specified.^ C. 26210, Feb. 12, 1910. 

IV D 5 d (2). The power of the President in the matter of accepting 
the resignations of officers in the military service is analogous to that 
exercised by the reviewing authority of a court-martial. Held that 
he may accompany his action by such remarks as he may deem 
necessary or appropriate to the discipline of the military service. 
Held, further, that after assigning reasons for his actions in accept- 
ing the resignation such reasons so assigned become an essential 
part of the acceptance. C. 16183, May 7, 1904- 

IV D 6. Held that an unqualified acceptance of a resignation is an 
honorable discharge from the service. C. 2170, Apr. 20, 1896; 3569, 
Oct. 4, 1897; 16183, May 7, 1904. Held, also, that where the accept- 
ance was "for the good of the service" the discharge was "without 
honor." C. 427, Oct., 1894; '^170, Apr. 20, 1896; 14536, Apr. 30. 
1903; 18107, June 5, 1905. 

IV E 1 a. A legal sentence of dismissal of an officer when finally 
confirmed by the competent authorities (according to the one- 
hundred and sixth or one hundred and ninth article of war) takes 
effect upon the officer on the day on which the confirmation is officially 
communicated to him, either by the promulgation of the order of 
confirmation at his station or other form of official notice. Thus the 
date of the actual confirmation is not necessarily- — is not probably 
in the majority of cases — the date on which the dismissal goes into 
effect. The declaration is indeed sometimes added in the order of 
confirmation, that the party ceases thereupon to be an officer of the 

1 See Barger v. U. S., 6 Ct. CLs., 35; Mimmack v. U. S., 10 Ct. Cls., 584 and 97 U. S., 
426; 2 Op. Atty. Gsn., 406; 12 id., 555; 14 id., 262. 

2 Barger v. U. S., 6 Ct. Cls., 645; Mimmack v. U. S., 10 Ct. Cls., 584; id. 97, U. S., 
426; 12 Op. Atty. Gen., 1255; 14 id., 202. 

93673°— 17 52 



818 OFFICE IV E 1 a (l). 

Army; but this declaration is immaterial and surplusage. It not 
unfrequently happens — especially in time of war, and particularly 
when the officer has, since his trial, been taken prisoner by the 
enemy — that a considerable period may elapse before the officer is 
officially informed of the confirmation of the sentence and thus 
becomes, in law and fact, dismissed from the service. R. 36, 110, 
Dec, 1874; 38, 341, Oct., 1876; P. 49, 176, Sept., 1891; C. 16823, Sept. 
13, 1904. 

IV E 1 a (1). A sentence of dismissal can not legally be confirmed 
so as to take effect as of a date prior to that of the formal confirma- 
tion. R. 30, 480, July, 1870; P. 42, 370, Aug., 1890. 

IV E 1 a (2). Where an officer who had been tried by a court- 
martial was, while awaiting the promulgation of the proceedings, 
taken prisoner by the enemy, and after his capture an order was 
published in his regiment, by which a sentence pronounced by the 
court, dismissing him from the service, was duly confirmed — lield 
that as he was beyond the control of the national authorities at the 
time of such publication, he could not be regarded as notified of 
such order or affected by it; and that he therefore continued to be 
an officer in the Army and entitled to pay as such up to the date — 
about six months subsequent to his capture — when, . upon being 
exchanged, he returned to his regiment in the field and was first 
notified of his dismissal as approved. R. 12, 230, Jan., 1865. 

IV E 1 b. Even before the passage of the act of July 20, 1868 
(15 Stat. 125), which was incorporated in section 1228, R. S., it was 
Tield that the legal execution of a legal sentence of dismissal sepa- 
rated an officer from the military service, and after the notice of 
such dismissal was served upon him his status was that of civilian 
as completely as if he had never been in the service. Held further 
that after such notice is served he can not be honorably discharged 
or placed on the retired list, or permitted to resign, and that the 
order of dismissal is not revocable. The only channel of reentering 
the service is by way of reappointment.^ R. 29, 108, July 12, 1869; 
30, 317, 323, May 7 and 9, 1870; 31, 603, July 8, 1871; 37, 420, 
492, Mar. 22, and Apr. 26, 1876; 39, 248, Oct. 23, 1877; 41, 673, 
Sept. 1, 1879. P. 47, 337, May 28, 1891; C. 13400, Oct. 7, 1902; 
13654, Nov. 13, 1902; 15973, Mar. 1, 1904; 16867, Sept. 9, 1904; 
18318, July 19, 1905; 23071, Apr. 11,1908. 

IV E 1 b (1). Wlien a sentence of dismissal is not legal, lield that 
there has been no dismissal in law. Held further that this fact may 
at any time be declared in orders. Thus if a court was illegally 
constituted or composed, or was without jurisdiction, or its proceed- 
ings were invalidated as by some such fatal defect as that less than 
five members took part in the judgment, or in case one or more of 
the members were not sworn the sentence will be illegal. Similarly, 
an officer can not be dismissed pursuant to a legal sentence until it shall 
have been approved or confirmed by competent authority. R. 20, 
302, Jan. 8, 1866; 26, 462, Feb. 19, 1868; 28, 457, Mar. 27, 1869; 29, 
575, Jan. 8, 1870; 30, 318, 323, 420, May 7, 1870, and June 20, 1870; 
34, 634, Nov. 29, 1873; 36, 274, 330, Feb. 23, 1875, and Mar. 22, 1875; 
38, 243, Aug. 14, 1876; 39, 238, 242, 248, Oct. 22 and 23, 1877; 55, 
221, Dec. 19, 1887; C. 7509, Jan. 6, 1900; 16710, Aug. 9, 1904. 

1 See 4 Op. Atty. Gen., 318; 14 id., 448, 502; also Report 868 of Judiciary Committee 
of Senate, of Mar. 3, 1879, 45th Cong., 3d ses?. 



OFFICE IV E 1 b (i) (a). 819 

IVE 1 b (1) (a). An ofl&cer of Volunteers was sentenced to dis- 
missal. The sentence was approved and another officer was mustered 
in, vice the dismissed officer. Later it was discovered that the sen- 
tence of the general court-martial was illegal and the dismissed officer 
was returned to duty. Held that the officer who was mustered in, 
vice the dismissed officer, was a de facto officer and his acts as far as 
they affected third parties were legal.^ C. 55, Aug. 15, and 691, 
Dec. 4,18H. 

IV E 1 c. Held that dismissal by sentence of a general court- 
martial does not render an officer ineligible for appointment to office 
in the military establishment {R. 36, 330, Mar., 1875); or for enlist- 
ment as a soldier (R. 7, 253, Feb., 1864); or for holding civil office 
under the United States. R. 8, 601, June, 1864; ^2, 517, Dec, 1866; 
and 31, 486, June, 1871. P. 38, 95, Jan., 1890;^ 40, 14, Mar., 1890. 

IV E 2 a. Dismissal by Executive order is quite distmct from dis- 
missal by sentence. The latter is a 'punishment; the former is 
removal from ojffice.^ The power to dismiss, which, as being an inci- 
dent to the power to appoint public officers, had been regarded since 
1789 as vested in the President by the Constitution,^ was, for the first 
time ill 1866 (by the act of July 13 of that year, reenacted in the 
second clause of the present ninety-ninth article of war and m section 
1229, R. S.), expressly divested by Congress in so far as respects its 
exercise in time of peace.* By the statute law it is now authorized 
only in time of war. C. 13323, Sept. 18, 1902; 13654, Nov. 13, 1902. 
During the War of the Rebellion it was exercised in a gi-eat number of 
cases, sometimes for the purpose of summarily ridding the service of 
unworthy officers, sometimes in the form of a discharge or muster-out 
of officers whose services were simply no longer required. The dis- 
tinction between this species of dismissal and dismissal by sentence is 
illustrated by the fact that the former has, with the sanction of legal 
authority, been repeatedly ordered m cases where a court-martial has 
previously acquitted the officer of the very offenses on accoujit of 
which the summarv action has been resorted to.^ R. 23, 265, Oct., 
1866; 26, 5, Sept., '^ 1867; 31, 557, Aug., 1871; 42, 470, July, 1880; 
48, 243, Jan., 1884. O. 4953, Sept. 24, 1898; 10513, May 16, 1901. 

IV E 2 a (1). A board appomted under the provisions of section 14 
of the act of April 22, 1898 (30 Stat. 363), ''to provide for temporarily 
increasing the military establishment," is not required either by 
statute or regulation to be sworn or to record the evidence taken. It 
was evidently intended as a summary jjroceeding adapted to time of 
war, and may be regarded as merely m aid of the President's authority 
in time of war to dismiss an officer without trial. It is doubtful 
whether in the present state of the law it would be proper to swear the 
members. The boards appointed under section 1 of tJie act of July 
15, 1870 (16 Stat. 318), were sworn, but those appomted under the act 

' An officer can not maintain an action for his salary unless he has a legal title to 
the office. Mere occupancy is not sufficient. See Runkle v. U. S. 19 Ct. Cls., 396 
(reversed on other grounds). 

2 See 7 Op. Atty. Gen., 251. 

^See, as among the principal authorities on this subject, Commonwealth v. Bus- 
sier, 5 Sergt. & Rawle, 461; Ex parte Hennen, 13 Peters, 258, 259; United States v. 
Guthrie, 17 Howard, 307; 4 Op. Atty. Gen., 1, 609-613; 6 id., 5-6; 7 id., 251; 8 id., 230- 
232; 12 id., 424-426; Sergeant, Const. Law, 373; 2 Stoiy's Cons. § 1537, note; 1 Kent's 
Corns., 310; 2 Marshall's Washington, 162; and 114 U. S., 619. 

^See 16 Op. Atty. Gen., 315. 

^See 12 Op. Atty, Gen., 427. 



820 orFicE IV E 2 b. 

of July 22, 1861 (12 Stat. 270), were not. Those sections were similar 
to the one under consideration. Where the proceedings of a board 
appomted under this later statute did not show that the members 
were sworn, and did not contain a report of the evidence taken, TieM, 
the President having approved the report and in accordance therewith 
discharged the officer, that the discharge was legal. C. 4-84^, Aug., 
1898. 

IV E 2 b. A summary dismissal of an officer does not properly take 
eflect untU the order of dismissal or an official copy of the same is 
delivered to him, or he is otherwise officially notified of the fact of the 
dismissal.^ P. 49, 91, and 176, Sept., 1891; C. J,8j^, Feb. 2, 1900; 
16823, Sept. 13, 1904. 

IV E 2 b (1). Held that the President, v/hen dismissing an officer 
by order, may fix a date in futuro when the discharge shall become 
operative. Wlien such date has been fixed in futuro he can not be 
discharged or mustered out as of a previous date by order of the War 
Department." Held, further, That all the acts of such officer, whether 
of command or in connection with stafi^ duty, if he be a staff officer, 
are legal untQ he receives notice of his order of discharge. C. 16823, 
Sept. 13, 1904. 

IV E 2 c (1). A summary dismissal "by order of the Secretary of 
War" is in law the act of the President.^ R. 5, 319, Nov., 1863; P. 
36, 322, Nov., 1889; C. 15973, Mar. 1, 1904. 

IV E 2 c (2). A department or Army commander can have of course 
no authority to summarily dismiss or discharge an officer from the 
military service. R. 11, 405, Feb., 1865; 16, 553, Sept., 1865; 41, 84, 
Jan., 1878; 42, 263, Apr., 1879. P. 47, 191, May 13,^ 1891. But 
where in a case of a Regular officer this authority was in fact exer- 
cised during the Civil War and the President, treating his office as 
vacant, proceeded to fill the vacancy by a new appointment, held 
that he had made the dismissal his own act by appomtment of a suc- 
cesses. R. 41, 84, Jan., 1878. So where (in 1863) an officer of vol- 
unteers was dismissed by the order of an Army commander, which 
was never ratified m terms by the President, but a successor, ap- 
pointed to the vacancy by the governor of the State, was accepted 
and mustered in by the United States; held that the office vested in 
the new incumbent at muster in. R. 44, 82, July, 1880; C. 3728, 
Dec., 1897. 

IV E 2 d. There can be no revocation of a legally executed order of 
dismissal, however unmerited or injudicious the origmal act may be 
deemed to have been. For distinct as dismissal by order is, in its 
nature, from dismissal by sentence, the effect of the proceeding in 
divesting the office is> the same in each case. An officer dismissed 
by an order, though his dismissal may have involved no disgrace, is 
assimilated to an officer dismissed by sentence in so far that he is 
completely relegated to a civil status, having in law no nearer or other 
relation to the military service than has anv civilian who has never 
been m the Army. C. 691, Dec, 1894; 3735, Mar., 1898; 4586, July, 
1898; 4954, Mar. 26, 1908; 13323, Sept. 18, 1902; 14882, June 27, 
1903; 15767, Jan. 12, 1904- Thus an order assuming to revoke a 
legal order of dismissal is as unauthorized as it is ineffectual. The 

'Gould V. U. S., 19 Ct. Cl8., 593, 595; IV Comp. Dec, 601; V id., 419. 

2 Allsteadt v. U. S., 3 Ct. Cls., 284. 

3 See 12 Op. Atty. Gen., 421; McElrath v. United States, 12 Ct. CI. R., 202. 



OFFICE IV E 2 d (l). 821 

original dismissal is an act done which can not be undone, and the 
order, which is the evidence of it, is therefore mcapable of i-evocation 
or recall.^ C. 4586, July 13, 1898. Nor can that be effected indi- 
rectly which can not legally be done directly. M\ officer dismissed 
by Executive order can not be relieved by being allowed to resign or 
be retired, or by bemg granted an honorable discharge. For, in order 
to be discharged, etc., from the Army, he must first be in the Army, 
and there is but one mode by which an officer once legally separated 
from the Army can be put into it, viz, bv a new appomtment accord- 
ing to the Constitution.2 R. 31, 604, July, 1871; 35, 392, 466, May 
and July, 1874; S6, 216, 330, Jan. and Mar., 1875; 37, 451, Apr., 
1876; 38, 61, 159, Jan. and July, 1876; 39, 248, Oct., 1877, and 474, 
Mar., 1878; 41, 153, Mar., 1878, and 611, July, 1879; 42, 73, Dec, 
1878; P. 35, 251, Sept., 1889; 36, 323, Nov., 1889; 52, 384, Mar., 
1892; 59, 80, Apr., 1893; 65, 51, May, 1894; G. 4953, Sept., 1898; 
15973, Mar. 1, Apr. 13, and May 7, 1904; 18318, July 18, 1905. 

IV E 2 d (1). ^^Qlile an order assummg to revoke an executed legal 
order or sentence of dismissal is void and inoperative, yet where such 
dismissed officer enters upon the duties of the office under the void order, 
held that he was during the period he thus performed such duties a 
de facto officer, so far as the rights of third persons were concerned. 
C. 691, Dec, 1894; 3735, Mar., 1898; 15973, Mar. 1, 1904. Held, 
further, that where such revokhig order was forged by the interested 
officer he was mdebted to the United States for the pay drawn bv 
hmi as a de facto officer. C. 9121, Oct. 13, 1900. 

IV E 2 e. Held that the summary discharge of an officer is a dis- 
charge without honor in the same manner that the summary dis- 
charge of an enlisted man is a discharge without honor. P. 52, 403, 
Mar. 21, 1892; 60, 250, June 30, 1893; 0. 1789, Oct. 18, 1895. 

IV E 2 f . A dismissal of an officer by executive order does not 
operate to disqualify him for reappointment to military office, or for 
appointment to civil office under the United States. R. 36, 330, Mar., 
1875. 

IV E 2 g (1) (a). Held, that the President has authority to dis- 
miss cadets from the United States Military Academy without trial 
by court-martial for cause-^* O. 10513, May 20, 1901. 

IV E 2 g (1) (&). Held, in the case of certain cadets at the United 
States Military Academy who had been dismissed, that after notice 
of such dismissal had been served upon them the President was with- 
out power to restrict or revoke the order dismissing them, or to 
pardon them so as to restore them to their former status at tlie Mili- 
tary Academy, a 25471, Aug. 24, 1909. 

IV E 2 g (1) (c). The summary dismissal of a cadet is a discharge 
without honor. C. 2533, Aug. 17, 1896. 

IV F. An officer was promoted from the grade of first lieutenant to 
that of captain, subject to examination. When examined he failed 

» See 4 Op. Atty. Gen., 124; 12 id., 424-428; 14 id., 520; 15 id., 658. A contrary view 
expressed by the Court of Claims, in its earlier period, in a series of cases — see Smith 
V. United States, 2 Ct. Cls., 206; Winters v. United States, 3 id., 136; Barnes v. United 
States, 4 id., 216; Montgomery v. United States, 5 id., 93 — was finally practically aban- 
doned in McELrath v. United States, 12 id., 201. See also U. S. v. Carson, 114 U. S., 
619. 

2 See 8 Op. Atty. Gen., 235; 12 id., 421; 13 id., 5; McElrath v. United States, 12 Ct. 
Cls., 201. 

*Hartigan v. United States, 38 Ct. Cls., 346; id. 196, U. S., 169. 



822 OFFICE TV G. 

for reasons other than physical m hne of duty. Held, that upon the 
date when the Secretary of War approved the adverse findings of tlie 
examining board tlie officer reverted from the grade of captain to that 
of first heutenant and entered upon tlie year's suspension as first 
lieutenant required by the act of October 1, 1890. C. 23096, May 26, 
1910. 

IV G. Held, that the detail of a battalion adjutant to duty with the 
chief of police in a city under military control does not relieve him as 
battalion adjutant. C. 16906, Sept. 27, 190^. 

Similarly held that the detail of a battalion quartermaster and 
commissary at the school of musketry does not relieve him as bat- 
talion quartermaster and commissary. C. 28998, Sept. 26, 1911. 

V A 1. Held that, in the absence of statutory regulation, the 
Executive has power to prescribe rules governing the appointment 
and promotion of officers of the volunteer forces. C. 12599, May 9, 
1902. 

V A 2. In case of an officer of volunteers who was mustered out of 
service before his appointment to a higher grade reached him; held, 
that as his acceptance was essential to the completion of the appoint- 
ment tendered him, his appointment was not completed. O. 12599, 
May 9, 1902. 

V A 3 a. Held that the restoration to command of dismissed volun- 
teer officers while the Volunteer Army and the organization to which 
they belonged were still in existence should be regarded as a new 
appointment. C. 23071, Apr. 11, 1908. 

V A 3 b. In a case of a volunteer officer unjustly dismissed by sen- 
tence or order during the Civil War, and appljdng for restoration, 
there is the obstacle (not encountered in a case of a regular officer) 
that the volunteer contingent of the Army has been long since dis- 
banded, so that a restoration to office in the same is impracticable. 
And as a dismissed officer can not, of course, be granted an honor- 
able discharge from the Army without first being readmitted to the 
Army by a new appointment, and a volunteer officer can not as such 
be so readmitted, advised, in a case of a volunteer officer applying 
for relief on account of an unjust dismissal, that the form of relief 
most apposite to his case would be a special enactment giving him 
pay from the date of his dismissal — reciting that the same was based 
upon insufficient grounds — to the date of the final muster-out of his 
regiment, precisely as if he had continued regularly in the service 
during the interval. R. 43, 235, Feb., 1880. 

V A 4 a. Upon a question of the constitutionality of the appoint- 
ment of officers of State volunteers by the ex'ecutives of the States, 
held that in the absence of a decision of the Supreme Court to the 
effect that such appointments in the past have been unconstitutional, 
and considering that we have for many years proceeded upon the 
theory that legislation which authorized such appointments was 
valid, we should not now question the legality of such past appoint- 
ments.i C. 9773, Feb. 26, 1901. 

' Approved by the Secretary of War and published to the service in circular form 
Mar. 18, 1901. 

During the Civil War all officers who were not appointed by the President, by and 
with the consent of the Senate, were mustered into the service. (See R. and P., 456829.) 

The President, in his proclamation of May 3, 1861, which embodied the first call 
for volunteers during the late war, announced that the men called for would be muB- 



OFFICE V A 4 b. 823 

V A 4 b. Held, that in appointing an officer of volunteers under the 
act of April 22, 1898 (30 Stat. 363), the goVernor of a State acts by 
authority and on behalf of the United States and not for or by the 
authority of his State. O. 5161, Oct. 26, 1898. 

V A 4 c. The officers of the State volunteer forces authorized 
during the Civil War held office in the volunteer military service 
analogous to military oflice in the Regular Ai^my, the incumbents of 
which were mducted into office in the operation of the constitutional 
appointmg power. It became necessary to provide some means by 
which mffitary offices in the volunteer forces could be filled, and a 
requirement that such offices should be filled by election, which was 
embodied in section 10 of the act of July 22, 1861 (12 Stat. 270),^ was 
subsequently replaced by a requirement of section 3 of the act of 
August 6, 1861 (12 Stat. 318), which vested power m the governors of 
the several States to fill vacancies thereafter occurring m regiments 
and other volunteer organizations furnished by said States for service 
m the Volunteer Army. Officers so appointed were "accepted" as 
officers of the organizations in which they had been duly appointed by 
the governors of the several States by " muster-in" by a duly author- 
ized mustering officer representing the United States. C. 25831, 
Nov. 22, 1909. 

V A 4 d. AVlien State volunteer troops are raised as those of the 
,Civil War and of 1898 were, there are three parties to the act— the 
individual entering the service, the State, and the United States, and 
it is the acceptance by the United States that completes the act. 
Held that the weU-established method of accepting the officers was 
by muster-in. Held also after a regiment had been mustered in if a 
vacancy occurred and a new appointment of an officer, whether by 
promotion or otherwise, was to be made that there were the same three 
parties to the act — the individual entering the service, the State, and 
the United States. The concurrence of the United States in this 
appointment was likewise essential in order to give it effect, and this 
concurrence was evidenced by a muster-in m the office to which the 
appointment was made. The former muster into service only related 
to the appointment then made; it could not possibly cover a subse- 
quent appointment to another ofhce.^ C. 9774, Feb. 25, 1901; 9773, 
Feb. 26, 1901; U587, Jan. 12, 1904; 25831, Nov. 22, 1909. 

V A 4 e. The act of Congress approved April 22, 1898 (30 Stat. 
363), prescribed "that all the regimental and company officers shall 
be appomted by the governors of the States m which their respective 
organizations [volunteerl are raised." Held, that this mcluded not 
only the origmal appointments in such organizations, but appouit- 

tered into the service, and that the details of "enrollment and organization " would be 
made known through the Department of War. On the following day the War Depart- 
ment published a "plan of organization" which provided, among other things, for 
the appointment of certain commissioned officers of each regiment by the governor 
of the State furnishing it; and shortly afterwards the department sent out to mustering 
officers and others instructions relative to mustering into service the organizations 
that should present themselves. Ibid. 

^ The class of officers who were mustered in without previous appointment or com- 
mission was composed chiefly of officers raised hastily, notably in Missouri, Kentucky, 
Tennessee, and Maryland, early in the war. (See R. & P. 456829.) 

^ Approved bv the Secretary of War and published to the service in circular form 
Mar. 15, 1901. 



824 OFFICE V A 5 a. 

ments to fill vacancies thereafter occurring/ C. Jf.08Ji., 4^28, April 
and June, 1898. 

V A 5 a (1). The date on which a volunteer officer, appointed by 
the President, formally accepts his appointment should be considered 
as the date of the commencement of his mihtary service. No such 
officer should be recognized as having been in the military service 
under his appointment because of any service that may have been 
rendered by him prior to his formal acceptance of that appointment. 
C. 66U, June, 1899. 

V A 5 a (2). During the War with Spain regiments of United 
States Volunteers were organized. Held that the commissioned 
officers of such regiments did not hold office until they were commis- 
sioned. Held further that the remedial legislation of March 3, 1899 
(30 Stat. 1073), which appropriated money for the payment of such 
organizations for a time preceding commissioning of the officers was 
a recognition of the fact that the officers were not in the service of 
the United States during the period. C. 7050, Sept., 1899, and 
Oct., 1900. 

V A 5 b (1). Although men may undoubtedly become soldiers 
in the military service of the United States without formal enlist- 
ment, held that the War Department has never admitted that 
volunteer officers appointed by governors of States could become 
officers in the service of the United States without muster-in,^ i. e., 
they can not be constructively mustered in. C. 9773, Feh. 26, 1901; 
26831 Nov. 23 1909. 

V A 5 b (2). The act of July 22, 1861 (12 Stat. 261), vested the 
authority to appoint all commissioned officers of the volunteer forces 
in the governors of the several States. Held that office did not fully 
vest in such appointees until they had been formally mustered in by 
a duly authorized commissary of musters acting in behalf of the 
United States. Held, further, that until such muster-in had been 
accomplished the appointment was revocable by the governor. Held, 
further, that after muster-in the power of the governor in respect 
thereto was exhausted and the subsecjuent tenure of the incumbent 
was determined by the laws of Congress relating to the maintenance 
of volunteer forces.^ C. U587 , Jan. 12, 1904; 16516, July 5, 1904. 

V A 5 b (3). Held that the War Department can not recognize the 
authority of a mustering officer to muster in an officer on one date, to 
date from an earlier date, nor can it recognize the officer so mustered 
in as of the grade conferred by such muster-in from the earher date 
mentioned in the muster-in roD." C. 9773, Feb. 26, 1901. 

V A 6 a. Officers of Volunteers appointed by the governors of States 
under the act of April 22, 1898 (30 Stat. 361), who performed serv- 

1 The majority of all officers of Volunteers during the Civil War were appointed by 
the governors and mustered into the service of the United States by duly appointed 
United States mustering officers. (See R. & P. 456829.) See a previous opmion of 
the Attorney General to the contrary, 22 Op. Atty. Gen., 536, July 18, 1899. 

2 Approved by the Secretary of War and published to the service in cii'cular form 
Mar. 18, 1901. 

2 Only officers of the Regular Army, including additional aides-de-camp appointed 
by the President under the law of Aug. 5, 1861, and even these only when detailed to 
do so by competent authority could act as muster-in officers (G. O. No. 66, 1861; G. O. 
No. 48, 1863, and the Mustering Regulations of Nov. 20, 1863). See R. and P. 456829. 
Also see 23 Op. Atty. Gen., 412. 

* This opinion was approved by the Secretary of War and published in circular form 
Mar. 18, 1901. 



OFFICE V A 7 a. 825 

ice and were treated as though in office, and were recognized in con- 
temporaneous official record but not mustered in, woufd not acquire 
rights based upon such defective title, but held that their law'ful acts, 
so far as the rights of third persons are concerned, if done within the 
scope and by the apparent authority of the offices, are as valid and 
binding as if such olhcers were legally qualified for the offices and in 
full possession thereof. ^ C. 9773, Feb. 26, 1901. 

V A 7 a. A captain of New York Cavalry accepted during the Civil 
War the office oi captain and assistant quartermaster of Volunteers. 
Held that his acceptance of that office vacated the office of captain 
of Cavalry, which he had theretofore occupied. P. 40, 158, Apr., 
1890. 

V A 7 b. An enlisted man. was appointed to the office of captain 
in another organization and accepted such appointment. Upon the 
issuance of an order purporting to revoke his appointment he returned 
to service as a private, as directed in the order. Held that he aban- 
doned the office of captain and it thereby became vacant. C. 2293, 
June 2, 1896. 

V A 7 c. In view of the fact that the tenure of office of a volunteer 
officer is for a fuced term and for a limited time only, the President 
has not the same power of dismissal as in the case of a regular officer, 
since dismissal in the case of a volunteer officer is not an incident of 
the appointing power. Held, however, that where the President 
directed the cancellation of the muster in of a volunteer officer on 
account of unfitness to hold commission it was a legal exercise of 
the authority of summary dismissal for cause vested in the President 
by section 17 of the act of July 17, 1SG2 ^ (12 Stat. 594). P. 46, 
102, Mar., 1891; 52, 496, Mar. 1892; 61, 264, Aug., 1893. 

V A 7 d (1). Held that in view of the fact that the Government 
does not need or demand a complete and final severance of a volun- 
teer officer's relation with civil life, as he is not permanently engaged 
in the military ser^dce, that a civil officer does not vacate such office 
by accepting and holding a commission in the Volunteer Army.^ C. 
4223, June 1, 1898. Held, however, that the acceptance by an offi- 
cer of Volunteers after muster in of the position of a member of the 
State legislature would vacate his office in the Volunteers.* C. 4233, 
June 2, 1898. 

V A 7 d (2) (a). The act of Congress approved May 28, 1898 (30 
Stat. 421), provided that officers of the Regular Army receiving com- 
missions in the Volunteer Army should not be held to vacate their 
offices in the Regular Army by accepting the same, and the act of 
Congress approved March 2, 1899 (30 Stat. 979), provided that 

1 This reverses a previous opinion of Mar. 31, 1879 (R. 41, 535), in the case of so- 
called Chaplain Blake. 

Approved by the Secretary of War and published to the service in circular form 
Mar. 18, 1901. 

2 See Mechem on Public Officers, p. 283, sec. 445; and Parsons v. United States, 30 
Ct. Cls., 222. 

The act of July 17, 1862, ceased to exist after the completion of the Civil War; it 
has been the practice of Congress, however, in subsequent legislation authorizing the 
employment of Volunteers to vest in the President during the period of the war power 
to dismiss officers of such Volunteers. ■ 

3 22 Op. Atty. Gen., 88, June 10, 1898. 

* The governor of a State has no power to depose an officer or interfere with the organ- 
ization of a regiment to which he belongs after such regiment is accepted and mustered 
into the service of the United States. (10 Op. Atty. Gen., 279, 306, and 22 id., 536. 



826 OFFICE V A 7 d (2) (h). 

Kegular Army officers continued or appointed as field or staff officers 
of Volunteers under the provisions of that act should not vacate 
their Regular Army commissions. The foregoing enactments were 
obviously intended to apply to officers already in commission in the 
Regular Army at the date when the Volunteer Armies of 1898 and 
1899 were organized and enabled them to hold higher military office 
in such volunteer forces without vacating their Regular Army offices. 
C. 16823, Sept. 13, 1904. 

V A 7 d (2) (6). Held, that an officer of Volunteers who in the 
operation of the act of February 2, 1901 (31 Stat. 748), and subse- 
quent acts amendatory thereof, had been appointed to office in the 
Regular Army might lawfully continue to hold his Volunteer com- 
mission and to exercise the functions and perform the duties which 
are incident to his office in the Volunteer establishment; and that 
office in such Volunteer forces is not vacated merely because the in- 
cumbent has been appointed to office in the Regular Army. 0. 16823, 
Sept 13, 1904. 

V A 7 e. The abolishment of an office through operation of law 
necessarily changes the status of the person who had occupied the 
office before its abolishment from that of an officer to that of a 
civilian. Held that the rules which govern the matter of dismissing 
an officer from an office which continues to exist do not apply here. 
Held, therefore, in a particular case where a man held the office of 
supernumerary second lieutenant of Company G, Eleventh Kentucky 
Cavalry, and the office was abolished by the act of March 3, 1863, that 
the status of that man changed from that of officer to civilian on the 
date of the approval of the act of March 3, 1863. P. 53, 462, May 21, 
1892; a 23071, Apr. 11, 1908; I4148, Dec. 15, 1911. 

V A 7 f . An officer was sentenced by a general court-martial to be 
cashiered, and the sentence was approved and published in orders. 
It is not shown that the order was communicated to the officer, who, 
pending its publication was returned to duty "without prejudice to 
sentence of court-martial," and remained thereafter in performance 
of duty with tlie company until it was mustered out. Held that the 
sentence of the court was not carried into effect prior to the muster 
out of the officer and for that reason was without force. P. 37, 407, 
Jan. 6, 1890. 

CROSS REFERENCE. 

Abolishment of See Volunteer Army IV D I a (5) (a). 

Army officer, eligibility for commission in 

National Guard See Militia III F; XVI K. 

Description of, in bond See Bonds II M. 

Distinguished from rank See Command I A. 

Engineer Brigade, United States Volunteers .See Volunteer Army III A to B. 

Is not rank See Rank I A. 

Medical Reserve Corps See Army I G 3 d (3) (c) [2]. 

Militia, not Federal office See Militia II to III. 

Retired enlisted men See Retirement II B 2; D to E. 

Retired officer See Claims X. 

Retirement I G; G 2 to 4. 

Right to See Discipline VIII G 1 c. 

Without rank See Rank I A 1. 

Vacation of, by disbursing officer See Bonds II E. 

Volunteers See Office V to VI . 

Volunteer Army II F 1 to 2. 



OFFICEB OFFICER OF THE DAY, 827 

OFFICER. 

See Army I C to D. 
Abuse of soldier See Discipline V D 2 a; XIV E 9 d (1) (6); 

XVII B 1 a to g. 
Desertion IX K. 
Articles of War LXII D. 

Arrest of. See Discipline I D 1 to 4. 

Bonded, relief of See Absence I B 1 f . 

Can not serve foreign Governments See Army I C 3. 

Certificate of merit -See Insignia of merit II I. 

College instructors ■ See Military instruction II B 1 to 2. 

Congress, correspondence xoith See Communications IV B 2. 

Conservator See Discipline III E 5 a. 

Contract by See Contracts II . 

Court ofinquini See Articles of War CXV A; CXIX A; 

B;CXXIA. 

Debts of See Army I B 2 a (2); (2) (o). 

Defense of, in civil courts See Army I B 5 a. 

Deprivation of pay and alloivances See Pay and allowances III A to B. 

Desertion of See Desertion XX A to F. 

Office IV D 4. 
Discharaeof. See Discharge II A 1; 2; XVIIA; B; XXI 

A; B. 

Examination for promotion See Retirement I B 6 to 8. 

Expert accountant, Inspector GeneraVs De- 
partment See Civilian employees I A 1. 

Forage See Pay and allowances II A 2 d to e. 

Heat and light See Pay and allowances II A 1 c to d. 

Horse, sale to Government See Army I G 3 b (2) (5) 

Impersonation of. See Uniform I C. 

Improper attempt to influence War Dept. . .See Communications IV B 1. 

Indians, instruction of. • See Army II C 1. 

Interment of. See Pay and allowances II A 2 c to d. 

Intoxicants See Intoxicants III D to E. 

Jury duty and road tax See Civilian employees III A. 

Militia duty with See Militia VI A 2 a. 

Mounted See Pay and allowances I B 7 to 8. 

Patent by See Patent VII to VIII. 

Pay See Pay and allowances I B to C. 

Pay can not be attached See Army I C 2. 

Quarters See Pay and allowances II A 2 b to c. 

Refuses to sigii certificate See Articles op War XXI C 1 a. 

Regular, holding office in militia See Militia XVI K. 

Office IV A 2 d (1). 

Relief of, by act of Congress See Army I B 6 a. 

Residence See Residence I. 

Retired status See Retirement I G. ' 

Retirement of See Retirement I to II. 

Servant See Officer's servant. 

Articles of War XXI C 2 a. 

Supplies purchased from See Contracts XV to XVI. 

Taxation See Tax I to II. 

Transportation See Pay and allowances II A 2 a to b. 

Unassigned list See Army I G 2 b (2). 

OFFICER IN CHARGE OF PUBLIC BUILDINGS AND GROUNDS 

IN WASHINGTON. 

Status of See Command I C. 

OFFICER OF THE DAY. 

Drunh See Articles op War XXXVIII B 3, 



828 officer's servant — official records I a 1. 

OFFICER'S SERVANT. 
I. CHINESE. 
n. FILIPINO. 

A. Private Arrangement. 

B. Officer's Control Over Servant. 

I. As the enforcement of the Chinese exclusion acts is in the 
Treasury Department, held that an officer should apply to that 
department for authority to introduce a Chinese servant into the 
United States. C. 11127, Aug. 22, 1901. 

II A. An Army officer has no greater authority over Filipino boys 
brought back with him from the Philippine Islands than has any 
other citizen. C. 20468, Oct. 5, 1905. 

II B. If Filipino boys are brought to this country on the condition 
that they act as servants and with the understanding that they 
shall be transported back to the Philippine Islands at the expense 
of the officer bringing them over here, and they leave the service 
of such officer, lietd that the officer would be under no liability to 
get them back to the Philippines. C. 20468, Aug. 31, 1909. 

CROSS reference. 

Admission to hospital See Army I G 3 d (8) (a). 

As camp folloivcr See Articles op War LXIII A 1. 

Soldier can not be See Articles op War XXI C 2 a; 

Army I C 1. 

OFFICIAL RECORDS. 

I. OFFICIAL PAPERS. 

A. On File in War Department. 

1. Confidential archives, copies may be furnished Page 828 

2. Copies furnished Page 829 

a. To civil courts upon certificate as to necessity. 

3. No official can change a record. 

B. On File at Department Headquarters. 

1. Charges and specifications Page 830 

C. Useless Papers. 

1. Outside of War Department. 

a. May be destroyed by order of Secretary of War. 

I A 1. The official papers on ffie in the War Department are not 
public records open to the inspection of any citizen; but, except in so 
far as law or usage has provided for the furnishing of copies of the 
same or the publication of their contents, as in the case of the records 
of military courts, such papers are confidential archives of the Gov- 
ernment wliich may be consulted, or of wliich copies may be furnished, 
only by the authority of the Secretary of War, except where the 
courts of law may properly require their exhibition in evidence.' 
The Secretary, in his capacity as an agent of the public, will of course 
be disposed to grant to proper persons such facilities for obtaining 
information from the records of his department as may, with due 
regard to the public interests, be accorded. Where application is 
made for copies of papers, it will be for him, in view of the nature of 

' The admission of copies in evidence is authorized by sec. 882, R. S., as follows: 
"Copies of any books, records, papers, or documents in any of the executive depart- 
ments, authenticated under the seals of such departments respectively, shall be 
admitted in evidence equally with the originals thereof." 



OFFICIAL EECORDS I A 2. 829 

the information sought, the use proposed to be made of the same, etc., 
to determine, in his discretion, whether the private interests involved 
are such as properly to outweigh any public considerations which may 
exist against granting the privilege. In furnisliing copies, a distinc- 
tion wl properly be made between documents in the nature of per- 
manent records, such as general or special orders, muster rolls, 
discharges of soldiers, commissions of officers, etc., and the reports 
and communications of officers addressed to military superiors or to 
the Secretary of War in the line of their official dut3^ The latter are 
generally regarded as privileged communications wliich even the courts, 
on grounds of public policy, will in general hold to be incompetent 
testimony and of which they will refuse to require *tlie production in 
evidence.^ R. 19, 375, and 21, 1^2, Jan., 1S66; 2^, 27, Nov., 1866; 
28, 26, July, 1868; C. 7912, Apr., 1900. 

I A 2. It is the well established practice of the War Department 
to decline to furnish copies of records, save upon a call from Congress 
or one of its committees, or upon the order of a court of the United 
States or a request from some other branch of the executive, for its 
official use, as from the accounting officers of the Treasury, or from 
the Land Office, the Indian Bureau, etc. This practice is believed 
to be general among the executive departments.^ C. 7912, Oct. 5, 
1910. The same rule would apply as to furnishing copies of Govern- 
ment papers and records which are not a part of the records of the 
War Department. C. 26841, June 1, 1910. Where a request was 
received from a Member of Congress for a copy of certain papers in 
the War Department to enable him to prepare a biU for legislative 
relief of the family of a citizen who was killed by a stray shot while 
troops were engaged in target practice, recommended that the copies 
be not furnished. C. 7912, Oct. 5, 1910; 23069, Dec. 9,1911. 

I A 2 a. Where copies of bonds and other papers and records of 
the War Department are necessary to aid in the administration of 
justice, and are applied for, it is usual to require a certificate of the 
tribunal before wliich the matter is pending to the effect that the 
same is necessarv and material to such proceeding. T'. 19264, July 
9 and Sept. 10, 1909. 

1 A 3. No official of the War Department, or other executive 
officer, is empowered to change a record oi fact — to so alter the official 
record of a soldier that it shall state that as a fact which is not a fact, 
whatever may be the equities of the case. It can not, for example, be 
made to appear on such a record that the soldier has been discharged, 

' See Dawkins v. Ld. Rokeby, 8 Q. B. 255; Dawkins v. Ld. Paulet, 5 L. Reps., Q. B. 
94; Dickson v. Earl of Wilton, 1 Fos. & Fin. 419; Home v. Ld. Bentinck, 2 Brod.^ct 
Bing. 130; Beatson v. Skene, 5 Hurl. & Nor. 837, 855 (Am. Ed.); Gardner v. Ander- 
son, 22 Int. Rev. Rec. 41; 1 Greenl. Ev., sec. 251; llOpins. Atty. Gen. 142; 15id. .378, 
415. In the recent case of Maurice v. Worden, 54 Md. 233 — an action for damages on 
account of a libel claimed to have l)een contained in a communication of the class 
indicated in the text — it was held that, while such a communication is not "abso- 
lutely privileged," it is privileged to the extent that the occasion of making it rebuts 
the presumption of malice, and throws upon the plaintiff the onus of proving that it 
was not made from duty but from actual malice and without reasonable and probable 
cause." But see dissenting opinion of Miller, J. See also Am. and Eng. Ency. of 
Law (Isted.), v. 19, 123; Best, Principles of Ev., 561, note (a); Wharton Law of Ev., 
v. 1, sec. 604; Worthington v. Scribner, 109 Mass., 487; Appeal of Hartranft et al, 85 
Pa. St., 433: U. S. v. Six Lots of Ground, 1 Woods, 234 (Fed. Cases, No. 16,299). 

2 See Boske v. Cumingore, 177 U. S., 459; Barney v. Schmeider, 9 Wall., 248; Mar- 
bury V. Madison, 1 Cranch, 137; United States ex rel Dunlap v. Black, 128 U. S., 40; 
United States ex rel Boynton v. Blaine, 139 U. S., 306. 



830 OFFICIAL EECORDS I B 1. 

mustered out, reenlisted, or mustered in, when in fact he has not been. 
Congress alone can grant rehef in such cases by authorizing such 
entries of record as would in effect accomplish the object sought — as 
it has indeed done in repeated instances.^ P. 35, 357, 393, and 36, 175, 
Oct., 1889; 40, 225, Apr., 1890; C. 2934, Feb. 10, 1897; 8962, Sept., 
1900. The general rule is that only erroneous records shall be 
amended, and the object of their amendment should be to make 
them state the truth (by correction by the person who made them or 
such entry thereon by another as may be duly authorized). The 
exception to the general rule is where a statute requires a certain 
amendment to be made. But in such an instance the statute should 
be strictly observed and applied only to the class of cases falling within 
its purview. P. 56, 352, Nov., 1892. 

I B 1 . The charge and specifications which are referred to a court mar- 
tial for trial are a public document, and I know of no authority for its 
destruction. The paper has no further official function after the ar- 
raignment has been made and the record of the court contains the 
charges upon which the accused is to be tried. The official character 
of the paper suggests the disposition which should be made of it. 
It was referred to the judge advocate of the court by the convening 
authority, and should be returned to liim for file in his office. The 
statement of service, in a case where there has been a conviction of 
desertion, should be forwarded to the office of the Judge Advocate 
General; in all other cases it should be returned to department head- 
quarters for file in the judge advocate's office. C. 15833, Jan. 28, 1904. 

I C 1 a. Held that all useless and valueless official papers per- 
taining to the records of military headquarters, posts or stations, 
could legally be destroyed by an order of the Secretary 'of War without 
a resort'to legislation. P. 63, 120, Jan., 1894- 

Held that the term "Executive departments" as used in the act 
of February 16, 1889 (25 Stat. 672), and in prior legislation in pari 
materia which authorized the destruction of certain useless papers, 
had obvious relation to the executive departments in the city of 
Washington.2 C. 16319, May 12, 1904. 

CROSS REFERENCE. 

Alteration See Volunteer Army IV H 1. 

Amendment See Discharge XVI B 2; XIX. 

Changed by act of Congress See Discharge XVI H. 

Confidential See Army I G 3 a (3); (4) (a) [2]. 

Evidence See Discipline XI A 17 a to b. 

Desertion IV A to O. 

Medal of honor See Insignia I A 2 a. 

Mistake See Desertion V F 4 a. 

Muster-in rolls See Volunteer Army II D to E. 

Muster-out date See Volunteer Army IV D 3 c. 

Mutilation, im.propcr See Desertion XVI C 1; 3; Dla; b. 

Name changed See Name IV. 

Nunc pro tunc See Enlistment I A 8 c. 

Pardon does not change See Desertion XV A. 

Bute as to furnishirig See Army I B 2 c (1) ; (2). 

Summary court record See Discipline XVI E 8 a. 

1 But see the act of Mar. 3, 1909 (35 Stat. 836), in which the Congress authorized 
the appointment of a court of inquiry with jurisdiction to pass on the question of 
the character of service of men who had been discharged without honor, and to correct 
their records. 

2 For rule as to destruction of old regimental and company papers see par. 258 and 
281 A. B,., 1910, ed. 



OPEN MAEKET TRANSACTION— PAEDON : SYNOPSIS, 831 

OPEN MAEKET TRANSACTION. 

See Contracts VII E 5; XXVIII. 

OPIUM. 

Restraint of sale See Intoxicants II E. 

Use of. See Articles of War XXXVIII A. 

OPTION. 

See Contracts XXXIV. 
Renewal of lease See Public Property VII A 4. 

ORDERS. 

See Communications I to II. 

Convening See Discipline III to IV. 

i^or revision See Discipline IX N 2. 

Nunc pro tunc See Communication I D. 

Promulgating See Discipline XIV to XA'I. 

Retiring, irrevocable See Retirement II G. 

Revohing order null See Pardon XVI B. 

To home for discharge See Volunteer Army IV D 2 a (1); (2), 

" Waiting " See Pay and allowances I B 2. 

ORDNANCE DEPARTMENT. 

See Army I G 3 b (4) to (5). 
Retirement of officer See Retirement I B 4 a. 

ORGANIZATION. 

Militia See Militia III to IV. 

Regiments See Laws II A 1 d. 

Volunteers See Volunteer Army III to IV. 

ORIGINAL PACKAGE. 

Delivery of intoxicants in See Intoxicants II A 1. 

OTHER FORCES. 

See Articles of A\'ar LXXVII A to B. 

PANAMA. 

Intervention See War I C 8 c (1). 

United Stales responsible for order See Territories V A. 

PARDON. 

1. AUTHORITY TO GRANT. 

A. President's Power is Complete Page 832 

1. Prisoner transferred from department in which tried. 

B. Congress May Not Control Pardoning Power of the President. 

1. Can not confer pardoning power on Secretary of War. 

n. MUST BE DELIVERED AND ACCEPTED Page 833 

A. May Be Revoked Before Delivery. 
m. REMOVES ALL UNEXPECTED PENALTIES. 

A. Including Punishments. 

B. State Statutes Excepted Page 834 



832 PAEDON I A. 

IV. EXTENDS TO CONTHJUTNG PUNISHMENTS. 

A. Application op Pardon to Loss of Files. 
V. RESTORES CITIZENSHIP FORFEITED BY DESERTION. 
VI. GROUNDS UPON WHICH PARDON IS RECOMMENDED— CASES. See 

also Discipline xv F to G. 
Vn. CONDITION PRECEDENT. 

A. To Pardonino Embezzler or Thief Page 8S5 

B. To Pardoning Deserter at Large. 

Vin. NOT RETROACTIVE— CASES Page 8:i6 

IX. DOES NOT REACH EXECUTED SENTENCES— CASES. 

X. PARDON OF ENEMY Page 837 

XI. PARDON FOR POLITICAL OFFENSE DOES NOT EXTEND TO CRIME. 
xn. MEN A^TIO LEAVE COUNTRY IN TIME OF WAR NOT PARDONED. 
Xni. SUMMARY t)ISCHARGE WHILE SERVING SENTENCE. 
XIV. DOES NOT CONFER ELIGIBILITY FOR ENLISTMENT. 
XV. CONSTRUCTIVE PARDON. 

A. Withdrawal of Charge in View of Pledge, is Not Page 833 

B. Reappointment of Dismissed Officer, is Not. 

C. Promotion of Officer. 

1. Before sentence is promulgated. 

2. During execution of sentence. 

a. To retain place on lineal list. 

3. By selection. 

4. By seniority alone. 

5. Under orders for summary dismissal. 

D. Ordering to Duty. 

1. Officer or soldier under sentence. • 

2. By authority inferior to the convening authority •. . Page 839 

a. Division commander, convening authority; department com- 
mander, restoring officer to duty. 

3. After charge is preferred, before sentence is promulgated. 

4. Of deserter without trial. 
XVI. REMISSION. 

A. Release From Punishment. 

1 . Disqualification to hold office Page 840 

B. Irrevocable. 

C. Sentence Credited With Time Previously Served Page 841 

D. Discharge of Soldier Serving Sentence. 

E. In Double Sentence, Remission of Unexecuted Portion of One 

Does Not Affect the Other. 

I A. Held that Article II, section 2, paragraph 1 of the Constitu- 
tion confers complete power on the President to grant pardons.^ 
C. 12430, Apr. 10, 1902. 

I A 1 . The President alone may grant pardon in cases where a 
prisoner has been transferred from the department in which he was 
tried. C. 2001, Jan. 22, 1896. 

I B. Congress can not control the exercise of the pardoning power 
by the President.^ C. 12430, Apr. 16, 1902. 

I B 1. Where it was proposed to authorize and direct the Secretary 
of War, by act of Congress, 'Ho revoke and set aside the proceedings 

1 See par. 501, Dig. 2d Comp. Dec, Vol. III. Sec. 20 Op. Atty. Gen., 330 and 368. 
- See 22 Op. Atty. Gen., 30; 20 id., 330. For power of Congress as to granting par- 
dons, see Brown v'. Walker, 161 U. S., 591, and U. S. v. Wilson, 32 U. S., 150. 



PAEDON II. 833 

had by a court-martial * * * during the month of November, 
1865, and to remit the sentence promulgated thereunder by order of 
April 13, 1866," held that it was beyond the constitutional power of 
Congress to thus invest the Secretary of War with the pardoning 
power ^ {C. 12430) and to extend it to a sentence long since carried 
mto execution. The pardoning power of the President under 
Article II, section 2, paragraph 17, of the Constitution, can neither 
be added to nor detracted from by legislation,^ and it has been 
repeatedly Jield with reference to this power that it can not reach 
an executed sentence. It must be therefore beyond the authority 
of Congress to vest in a subordinate official a power to pardon 
which the constitutional pardoning power can not exercise. Con- 
gress can not in this or any other way undo the executed judgment 
of a court-martial. P. 51, 357, Jan., 1892, C. 23068, Feb. 11, 1909. 

II. A pardon, like a deed, must be delivered to and accepted by 
the party to whom it is granted.^ Held, that there can be no pardon 
of a deceased officer or soldier even though requested by the party's 
widow or heir, who is to be pecuniarily benefited thereby. R. 15, 
486, 654, July and Sept., 1865; 21, 564, and 22, 291, July, 1866. 
Or even requested for the purpose of having the stigma removed 
from the record in the service of an officer who had died while 
under suspension. R. 7, 138, Feb., 1864- 

II A. A pardon was issued in favor of a general prisoner confined 
at Alcatraz Island, Cal., but before it was delivered and accepted by 
the prisoner he, by means of a forged instrument, secured his release, 
and when the pardon was received at Alcatraz was at large as an 
escaped prisoner. Held that the pardon could be legally revoked 
and the subject of the pardon apprehended and compelled to com- 
plete his sentence." C. 11380, Nov. 6, 1903; 28879, Apr. 23, 1911. 

III. Held, that a full pardon (otherwise of a mere remission of the 
punishment) removes all unexecuted penal consequences and all dis- 
abihties, attached by United States statute (or army regulation) to 
the office, or to the conviction or sentence.^ R. 31, 183, Feb., 1871. 

III A. It is the effect of the exercise of the pardoning power by the 
President to relieve the party from all punishment remaining to be 
suffered. Where, therefore, he remits the unexecuted portion of a 
term of imprisonment, an additional penalty which, by the express 
terms of the sentence, was to be incurred at the end of the adjudged 
term, as a dishonorable discharge from the service, can not be enforced. 
The pardon having intervened, the sentence ceases to have any effect 
whatever in law, and the soldier, the remainder of his service being 

1 Ex parte Garland. 71 U. S., 380, Dec, 1866; 22 Op. Atty. Gen., 36, Feb. 9, 1898. 

^ See Senate Doc. No. 708, 60th Congress, 2d session, which publishes a message of 
the President of the United States, in which he vetoed an act which provided for 
the vesting of such portion of the pardoning power in the secretaries of the Army 
and Navy as should be necessary to restore the rights of citizenship which had been 
forfeited by desertion from the Army or Navy, for the reason that such act was an 
attempt to transfer to his subordinates a portion of the pardoning power which had 
been vested in the President by the Constitution. 

^ United States v. Wilson, 7 Peters, 150; In re De Puy, 3 Benedict, 307; 6 Op. Atty. 
Gen., 403. And, in the absence of an express rejection, it is conclusively presumed 
to be accepted on actual or constructive notice. 

* The pardon was revoked on the ground that the prisoner secured his release on 
a forged order. 

* 12 Op. Atty. Gen., 81; Ex parte Garland, 4 Wallace, 380; 8 Op. Atty. Gen., 284; 
9 id., 478; 14 id., 124. And see People v. Bowen, 43 Cal., 439. 

93673°— 17 53 



834 PARDON III B. 

regular — must be honorably discharged. R. 8, 669, July, 1864; 
20, 460, Mar., 1866; C. 2174, Mar. 28, 1906; 4678, July 27, 1898; 
7848, Mar. 17, 1900. 

III B. Held, that a pardon by the President Avill be ineffectual to 
remove a disquahfication incurred by the offender under a State 
statute.! R. 29, 251, Sept., 1869; 41, 465, Nov., 1878; C. 6573, July 
12, 1899; 10806, July 11, 1901; 12430, Apr. 10, 1902, with citations; 
3531, Feh. 9, 1910. 

IV. The pardoning power extends to continuing punishments, or 
punishments wliich are never fully executed, remitting in each case 
the punishment from and after the taking effect of the pardon. 
C. 2174, Mar. 28, 1906. Of this class is the punishment of disquah- 
fication to hold mihtary or pubhc office, as also that of the losing of or 
reduction in "files" (or relative rank) in the list of officers of the 
offender's grade; these, being continuing punishments, may be put 
an end to at any time by a remission by the pardoning power.- R. 30, 
262, Apr., 1870; 31, 24, Nov., 1870; 41, 158, Mar., 1878; P. 41, 380, 
July, 1890; 56, 434, Dec, 1892; 60, 348, July, 1893; C. 14389, May 
15, 1906. 

IV A. Held that a pardon in the case of an officer suffering a sen- 
tence of a loss of files would operate to restore him to his former rank 
according to the date of his comnfission, the officer losing, of course, 
such opportunities for promotion as might in the meantime have 
accrued.^* C. 14389, Aug. 8, 1907. 

V. Where a soldier has been duly convicted of desertion, the loss 
of the rights of citizenship incident thereto is in practice restored by 
a formal pardon from the President; a remission of the punishment 
adjudged by the court-martial does not have such effect. R. 31, 183, 
Feb., 1871; C. 3010, June, 1897; 4U6, May 19, 1898; 11345, Oct. 7, 
1901; 16215, Apr. 27, 1904. 

VI. The pardon or remission of the unexpired punishments of 
soldiers, where favored by the Judge Advocate General, has been 
recommended on grounds of which the principal were the following: 
That the soldier was a minor at enlistment. 0. 19577, Dec. 12, 1907. 
That he was enlisted under false representations as to the kind of 
service which would be required of him, made by the recruiting 
officer. That he enlisted as a mere recruit, did not have the Articles 
of War read to him, and had no proper comprehension of the gravity 
of his offence; that he did not comprehend his military obligations 
on account of an imperfect knowledge of the English language; that 
he was an Indian scou^ unacquainted with our language or with the 
Articles of War; that his offence was wholly or in part induced by 
harsh or injudicious treatment by a military superior ; that excessive 
or unreasonable duty had been required of him, or that he had been 
put on duty (as a guard or sentinel, for example) when unfit for the 
same on account of illness or partial intoxication; that his offence 
was committed under a provocation, or was accompanied by circum- 
stances of extenuation, to which the court had not given due weight; 
that prior to his trial and sentence he had been adequately disciplined 
by his commander; that he had been improperly held in irons, or 

1 7 Op. Atty. Gen., 760. 

2 See 12 Op. Atty. Gen., 547; 17 id., 31, 656; G. C. M. O., 54, 1884, and S. O., 116, 
A. G. O., 1886; also G. C. M. O., 85, A. G. O., 1891. 

^ 17 Op. Atty. Gen., 31. 



PARDON VII A. 835 

handcuffed, pending the trial; that his confinement had so seriously 
impaired Ms health that if contmued it would endanger his life ; that 
an unreasonable time was allowed to elapse between his arrest and 
trial, or after trial and before the approval and promulgation of the 
sentence. These and other grounds have been taken into considera- 
tion, sometimes alone and sometimes m combination or in connec- 
tion with such further favorable circumstances as voluntary return 
m case of desertion, previous good character, good conduct under 
sentence, etc. In cases of officers, the principal grounds for recom- 
mendmg pardon or remission have been — a previous good record 
for efficiency hi the service, especially in time of war, a high personal 
character or reputation, and an apparent absence of a fraudulent 
or criminal intent in the offence as committed. R. 9, 245, 595, June 
and Sept., 1864; 1^, 99, Bee, 1864; 26, 540, Apr., 1868; 27, 505, Feb., 
1869; 28, 340, Jan., 1869; 32, 675, June, 1872; 84, 661, Dec, 1873; 
P. 40, 386, May, 1890; 4I, 273, June, 1890; C. 14389, Apr. 24, 1905. 

The foUowing have also been the bases for recommending pardon, 
viz: 

Deserted soon after enlistment. C. 11915, Jan. 25, 1902; 16601, 
July 20, 1904; 19577, Jan. 11, 1907. 

Faithful service in previous enlistments. C. 13099, Aug. I4, 1902; 
17519, Feb. 10, 1905; 19577, Feb. 27 and Mar. 6, 1907. 

Did not appreciate gravity of offence. C. 19577, May 3, 1907. 

No specially aggravating circumstances connected with the deser- 
tion. C. 2974, Aug. 6, 1898. 

For good service during San Francisco catastrophe. C. 19577, 
Sept. 12, 1907. 

Prompt surrender after deserting. C. 12270, Mar. 24, 1902; 
13099, Aug. I4, 1902; 13555, Oct. 27, 1902. 

Also recommendation to the reviewing authority for clemency 
by the members of the court and the judge advocate. C. 15747, 
Jan. 16, 1904. 

Insane since before the preferrmg of the charges. C. 17386, Oct. 8, 
1907. See also Discipline XV FtoG. 

VII A. In certain cases of military offenders convicted of larceny of 
public }3roperty or conversion of public funds (or who had escaped 
from military custody while under charges for such offenses) and 
applying for pardon, advised that, even if otherwise thought worthy 
of pardon, no pardon should be extended to them except upon the 
condition precedent of their making good the funds appropriated, or 
the property stolen or its value. R. 1, 366, Oct., 1862; 19, 132, Nov., 
1865; 26, 648, July, 1868. _ 

VII B. In cases in which fnilitary offenders— such as deserters 
from the Army remaining at large or officers or soldiers who have 
escaped from military custody while in arrest or under sentence — 
have applied from their places of refuge for Executive pardons, it has 
almost invariably been advised by the Judge Advocate General that 
the application be not entertained till the fugitive from justice 
should return and surrender himself to the military authorities to 
stand his trial or abide bv his sentence. R. 17, 264, Sept., 1865; 
19, 132, Nov., 1865, and 690, Sept., 1866; 22, 285, July, 1866; 23, 309, 
Oct., 1866; 26, 648, July, 1868; 34, 661, Dec, 1873; 35, 551, Aug., 
1874; 38, 607, 652, May and June, 1877; 39, 324 and 326, Nov. 1877; 
43, 171, Jan. 1880; P. 39, 482, Mar., 1890; 44, 390, Dec, 1890; 
C. 3304, 3656, June and Nov., 1897; 5342, 5733, 5885, Jan. and Feb., 
1899; 9947, June 13, 1901; 22725, Feb. 8, 1908; 25059, June 4, 1909. 



836 PARDON VIII. 

VIII. A pardon is not retroactive. G. 4.678, July 27, 1898; 
2174, Mar. 28, 1906. It can not remit an executed punishment or 
restore an executed forfeiture resulting either by operation of law or 
sentence. It can not, therefore, restore the forfeitures incident upon 
desertion. Further, it can not modify past history, or reverse or 
after the facts of a completed record. C. 124-30, Apr. 16, 1902; 
20342, Sept. 7, 1906. From and after the taking effect of a pardon 
the recipient is innocent in law as to any subsequent contingencies, 
but the pardon does not annihilate the fact that he was guilty of the 
offense. The pardon, indeed, proceeds upon the theory that the 
party was guilty in fact. The asking for it is an admission of guilt, 
and the granting of it is a recognition of the fact of guilt.^ Thus 
held that the President could not, by a pardon, remove the charge of 
desertion from the record of a former soldier (C. 3794, Jan. 18, 1898; 
4678, July 27, 1898) who had long since become a civilian by reason 
of the muster out and nonexistence of the Volunteer Army to which 
he had belonged in the Civil War; and that the effect of his pardon 
would not be to give him an honorable discharge. A pardon would 
not only not remove a charge of desertion, but would, in fact, con- 
firm it and constitute an additional reason for retaining it on the 
record. And a party can not, by an Executive act, be discharged 
from the service unless he is in the service. R. 50, 395, June, 1886; 
P. 42, 4O6, Aug., 1890; 43, 36, Sept, 1890; 48, 232, July, 1891; C. 
3125, Apr., 1897; 3794 avd 3810, Jan., 1898. 

IX. A pardon can not reach or remit a fully executed sentence, 
though the same may have been unjustly imposed. R. 8, 228, Apr. 
1864; 36, 631, Aug., 1875; C. 2174, Mar. 28, 1896; 3531, Sept. 23, 
1897; 4094, May 7, 1898; 12430, Apr. 16, 1902; 13879, Jan. 5, 1903; 
I86I4, Sept. 22, 1905; 26007, Dec. 11, 1911. A pardon can not of 
course undo a corporal punishment fully inflicted;^ nor can it avail 
to restore to the Army an officer legally separated therefrom and 
made a civilian by a duly approved sentence of dismissal,^ or a 
soldier by a dishonorable discharge.* R. 12, 427, and 14-, 568, June, 
1865; 20, 302, Jan., 1866; 4I, 465, Nov., 1878; C. 2049, 2216, 
2174, 2809, Feb. to Dec, 1896; 3810, Jan., 1897; 2809 and 3531, 
Sept. 23, 1897; 5624-, Jan., 1899; 12430, Apr. 16, 1902; I86I4, Sept. 22, 
1905. Nor can it restore a fme paid (R. 16, 305, June, 1865; 35, 471, 
July, 1874) or pay forfeited ^ (R. 20, 90, Oct., 1865; 28, 567, May, 
1869), when the amount of the same has once gone beyond the con- 
trol of the Executive and been covered into the United States Treas- 
ury and become public funds,^ whatever may have been the merits 

1 See Ex parte Garland, 4 Wallace, 333; Knote v. U. S., 95 U. S., 153; In re Spenser, 
5 Sawyer, 195 (Fed. Cases, No. 13234). 

2 See 8 Op. Atty. Gen., 284. 

3 12 Op. Atty. Gen., 548; Ex parte Garland, 4 Wallace, 381. 

* 27 Op. Atty. Gen., 179, Feb. 17, 1909. 

* Digest 2d Comp. Dec, Vol. II, par. 736, and Vol. Ill, par. 502. XII Comp. Dec, 
276. 

^ 2 Op. Atty. Gen., 330; XVI, id. 1. This, because the same Constitution wliich con- 
fers the pardoning power contains a provision "of equal efficiency" (Art. 1, sec 9, par. 
7), to the effect that money in the Public Treasury shall not be withdrawn except by 
an appropriation made by law. VIII, id. 281. Compare, in this connection, Knote v. 
United States, 5 Otto, 149, where it was held that an Executive pardon would not 
entitle a party to the proceeds of certain personal effects, confiscated and sold by the 
United States as the property of an enemy, after such proceeds had been duly paid into 
the Treasury. 



PARDON X. 837 

of the case. R. 36, 192, Jan., 1875; 37, U5, Mar., 1876; P. 34, 334, 
AuQ., 1889; C. 3810, supra. Otherwise, however, where the money 
still remains in the hands of a military disbursing officer or other 
intermediate official.^ R. 16, 676, Nov., 1865; P. 61, 226; Aug. 29, 
1893; C. 2174, Apr. 8, 1896. Wliere, however, any portion of a 
punishment remains unexecuted, that portion may be remitted by the 
pardoning power.^ R. 2, 29, Feb., 1863. Congress alone can restore 
pay fully forfeited to the United States, or otherwise pecuniarily 
indemnify an officer or soldier for the consequences or a legally 
executed sentence. R. 44, 270, Jan., 1881; P. 34, 334, ^ug., 1889, 
a 11034, Aug. 17, 1901. 

X. Held, that a pardon extended to an enemy for his offense or 
offenses as such, committed durmg the war, did not entitle him to be 
paid rent for the occupation of his real estate by the United States 
military authorities wnile occupying by the right of conquest the 
region of country in which such estate was situated. R, 22, 5, 16, 
Mar., 1866. 

XI. A party who has been pardoned by the President for a political 
offense, or has taken advantage of a proclamation of amnesty (such 
as that of May 29, 1865, or Dec. 25, 1868), is not thereby relieved 
from amenability to trial and punishment for a crime, not of a political 
character, committed by him, or from the legal consequences of the 
commission of such a crime. R. 28, 394, P^b., 1869; 29, 35, June, 
1869. 

XII. In cases of deserters from the Army and from the draft, who, 
during the Civil War, when men of patriotism and honor were offering 
their lives in the service of their countrv, took refuge in Canada — 
shirking a grave public duty at a critical period of national peril — 
and remained there till the close of the war, when, in the prospect 
of returning peace, they addressed to the Executive applications 
for pardon, advised, invariably, that such applications be denied. 
R. 17, 208, Aug., 1865; 20, 44, Oct., 1865. 

XIII. Held, that a soldier may be summarily discharged while in 
confinement under sentence, but a summary discharge under such cir- 
cumstances would not only discharge him from the service but would 
effect a remission of so much of the sentence as remained unexecuted 
on the date of the discharge.^ P. 53, 409, May, 1892; C. 1906 and 
1907, Dec. 16 and 1912, Dec. 17, 1895; 3695, Nov. 30, 1897; 6034, 
Mar. 15, 1899; 11393, Oct. 17, 1901. 

XIV. Held that the full pardon of a deserter would not render him 
eligible for reenlistment if his service during his last preceding term 
was not honest and faithful." C. 1883, Feb. 25, 1899; 1765, Oct. 4, 
1895; 3125, Apr. and June, 1897; 4513, July 12, 1898; 4645, July, 
1898; 5280, Nov. 11, 1898; 6729, July 14, 1899; 10994, Aug. 7, 1901; 
11028, Aug. 14, 1901; 15288, Sept. 26, 1903; 16323, May 11, 1904; 
16151, Aug. 18, 1904; 17661, Apr. 17, 1908; 19577, July 13, 1909; 
26007, Jan. 3, 1910, Nov. 28 and 29, 1911, Dec. 11, 1911. 

'14 Op. Atty. Gen., 601. 

^ And the Executive, in the exercise of the pardoning power, "may pardon or remit 
a portion of the sentence at one time and a different portion at another. ' ' 3 Op. Atty. 
Gen., 418. 

^ That a discharge by reason of expiration of term of service given pending the exe- 
cution of a period of confinement, which extends beyond the term of enlistment, does 
not have such effect, see G. O., 138, A. G. O., 1899. 

*See 22 Op. Atty. Gen., 36, Feb. 9, 1898. 



838 PARDON XV A. 

XV. A. Held, that a withdrawal by a department commander of a 
pending charge against a soldier, upon his giving a pledge to abstain 
in the future from the conduct which was the subject of the charge, 
did not operate as a pardon and could not be pleaded as such. Had it 
been done by an order of the President, it could have had no further 
operation than as a quasi conditional pardon, leaving the charge legally 
renewable upon a repetition of the offense. P. 35, J^23, Oct., 1889. 

XV B. The reappointment to the Army of a dismissed officer does 
not operate as a condonation.^ The dismissal remains a dishonorable 
separation from the service. C. 2893, Jan. 1897. 

XV C 1. The promotion of an officer while under charges, while 
awaiting trial by court-martial, or wliile awaiting action on the 
sentence does not operate as a constructive pardon as he is presumed 
to be innocent until his guilt is established by an approved sentence 
of a court-martial. C. 14389, Aug. 13, 1903; 10600, July 12, 1901, 
and Apr. 23, 1902. 

XV C 2. The promotion of an officer who is suffering punishment 
under a duly approved sentence, Jield to be a constructive pardon if 
the promotion is inconsistent with the further operation of the sen- 
tence; otherwise not.^ C. 14389, Aug. 13, 1903. 

XV C 2 a. Where an officer was sentenced "to retain his number 
on the lineal list of second lieutenants of infantry for three years," 
held that the sentence, while operative, rendered Mm ineligible for 

Eromotion under the act of October 1, 1890 (26 Stat. 562), and that 
is promotion pending the execution of the sentence would operate 
as a pardon. P. 47, 293, May, 1891. 

XV C 3. Should an officer be selected for appointment to a higher 
office in the Army outside of the line of promotion in the branch of 
the line of the department or staff' to whicn he belongs, held that such 

Promotion would be a constructive pardon of any offense that he may 
ave been charged wiifh committing, C. 25574, ^pr. 27, 1910. 

XV C 4. If an officer is promoted on seniority alone, without any 
other test, held that it can not be contended that such advancement 
in the operation of law has the effect of condoning offenses committed 
by the officer, i. e., of a constructive pardon. C. 25574, Apr. 27, 
1910. 

XV C 5. An officer was ordered summarily dismissed, but before 
he received notice he was promoted. Held, that such promotion 
did not operate as a constructive pardon, and that he should be 
dismissed under his new rank. R. 6, 558, Nov., 1864. 

XV D 1. Ordering or authorizing an officer or soldier, when undbr 
sentence, to exercise a command or perform any other duty incon- 
sistent with the continued execution of lus sentence, has been viewed 

' The appointment of an officer to a new commission is constructive piardon of a 
previous sentence pronounced but not yet executed (6 Op. Atty. Gen., 123). 

2 The opinion by the Attorney General, 6 Op., 123, Sept. 20, 1853, and the statement 
in Winthrop's Military Law and Precedents, 2d Edition, p. 724, was based on the case 
of an officer under sentence of suspension from the naval service on half pay. This 
status deprived the officer of all right to promotion while the sentence was in force. 
The promotion of the officer dm-ing such time was not required by law, and as it was 
inconsistent with the continued operation of the sentence it could not be otherwise 
construed than as a constructive pardon. 



PARDON XV D 2. 839 

as a constructive pardon/ but held, that to allow an officer, while 
under a sentence of suspension from rank, to perform certain slight 
duties in closing his accounts witli the United States, could not be 
regarded as having any such effect. R. 37, 190, Dec, 1875; C. 12292, 
Mar. 29, 1902. 

XV D 2, Held, that restoration to duty by an authority inferior 
to the authority which is competent to order the trial of the officer 
or enlisted man is not a constructive pardon. C. 24694, Apr. 8, 1909. 

XV D 2 a. A department commander preferred charges against 
an officer on his staff. Later he released the officer from arrest, 
relieved him from duty at department headquarters, and ordered him 
to join his company. Upon the trial of this officer ordered by the 
division commander it was contended in a special plea that the above 
was an assignment to duty under circumstances which made it a 
constructive pardon. The court overruled the plea. Held, that the 
ruling of the court was correct and that the action of the department 
commander did not constitute a constructive pardon. C. 20731, 
Mar. 2, 1907. 

XV D 3. Held, that while placing a soldier on a duty which is incon- 
sistent with a sentence which he is serving has been viewed as a 
pardon; that such action while the soldier is under charges or await- 
mg the result of trial would not ordinarily be so construed, and that 
if the soldier is placed on duty by an authority inferior to that which 
ordered his trial, it would clearly not be a constructive pardon. 
C. 11868, Jan. 15, 1902.^ 

XV D 4. The restoration of a deserter to duty without trial is 
practically a pardon before conviction; it is termed by some military 
writers "a constructive pardon," * and is a valid plea in bar of trial 
for desertion. As all pardons proceed upon the hypothesis of the 
legal guilt of the person pardoned, tlie restoration of a deserter to 
duty without trial presupposes the commission of desertion. A 
pardon, like a deed, must, in order to take effect, be delivered to, 
and accepted by the party to whom it is granted. In military cases 
the acceptance is commoiily indicated by the soldier voluntarily sub- 
mitting to the proceeding or performing the act required as a con- 
dition. This acceptance of, or submission to, the restoration to duty 
without trial is virtually a confession of his guilt; his desertion thus 
becomes an established fact, as much as if he had been tried and 
convicted.3 P 21, 223, Dec, 1887. 

XVI A. Remission is relieving the person from a punishment or 
tlie unexecuted portion of a punishment, but not pardoning the 
offense as such, or removing the disabilities or penal consequences 
attaching tliereto or to the conviction.* The pardoning of ' ' punish- 
ment," authority for whicli is vested in certain commandere by the 
one hundred and twelfth article of war, is remission. An offender 
can be completely rehabilitated only by a /wZZ j^ardon granted under 

' Restoration to duty remits any unexecuted portion of tlie sentence for forfeiture.' 
(Par. 507, Digest of 2d Comp. Dec, Vol. Ill, Nov. 20, 1888.) 
See 6 Op. Atty. Gen., 714. 

2 Winthrop, 380. 

3 See Circ. 4, A. G. O., 1884; A. R. 132 of 1895, and 143 of 1901. 

* Compare Perkins v. Stevens, 24 Pick. 277; Lee v. Murphy, 22 Grat. 799; 1 Biah. 
Cr. L. Bee. 763; 2 Opins. Atty. Gen. 329; 5 id. 588; 8 id. 283-284. 



840 PAEDON XVI A 1. 

the pardoning power of the Constitution. * R. 24, 679, July, 1867; 
37, 613, June, 1876; 57, 89, Oct., 1888; P. 32, 401, May, 1889. 

XVI A 1 . Disqualification, or incapacity to hold office under the 
United States, is a punishment certainly sanctioned by precedent in 
the military service.^ Being a continuing punishment, it may of 
course be removed by a remission of the same by the pardoning 
power at any time during the life of the party. R. 31, 24, Nov., 
1870; 41, 158, Mar., 1878; 42, 636, May, 1880. 

XVI B. After a sentence is once unconditionally remitted, it can 
not be renewed or revived. An order purporting to revoke the 

' Ex parte Garland, 4 Wallace, 380. 

^ It is indeed specifically authorized in two articles of war, Nos. 6 and 14 (providing 
for the punishment of false muster and like offences), but is here apparently intended 
not as an independent punishment but as a penal consequence incident upon convic- 
tion and sentence of dismissal. As a distinctive punishment, however, it has been 
imposed in many cases, and has apparently been regarded as a particularly suitable 
penalty in cases of embezzlement of public funds or other fraud upon the Government. 

Instances of sentences, including (generally with dismissal) the punishment of 
disqualification, are to be found in the following orders of the War Department (or 
Hdqrs. of Army), published before the Civil War, the instances being none of them 
cases of conviction of false muster: G. O. of April 2, 1818; do. of Sept. 25, 1819; do. 
71 of 1829; do. 15 of 1860. The infrequency of this punishment in the early orders 
may perhaps be owing in part to the fact that it was considered that "cashiering" — a 
sentence often then adjudged — involved disqualification. Similar instances of the 
same punishment occur in the following orders issued from the War Department 
during and since the Civil War: G. 0. 18, 94, 159, 184, 242, 249, 332, 389, of 1863; do. 
36, 51, 69, of 1864; G. C. M. O. 175, 251, 277, 369, 395, 404, of 1864; do. &, 46, 85, 125, 
201, 205, 219, 232, 238, 260, 270, 315, 365, 397, 432, 541, 565, 584, 602, 649, of 1865; 
do. 22, 68, 82, 89, 111, 161, 181, of 1866; do. 21, 52, 56, 62, 89, 91, 98, of 1867; do. 2, 58, 
of 1868; do. 44 of 1869; do. 14, 15, of 1870. Instances of this punishment have also 
been noted in the following orders issued from the military departments, armies, 
&c.: G. O. 60, 64, 76, 86, 89, 99, 106, of 1863; do. 2, 4, 20, 24, 28, 30, 32, 51, of 1864; 
do. 9, 12, of 1865— Army of the Potomac. G. O. 18, 81, of 1864; do. 11 of 1865— Dept. 
of the East. G. 0. 81 of 1864— Dept. of Pennsylvania. G. O. 96 of 1864; do. 23, 27, of 
1865— Middle Department. G. O. 22 of 1865— Middle Military Division. G. O. 15 of 
1863; do. 30 of 1865— Dept. of West Virginia. G. O. 34, 113, 175, of 1864; do. 49, 82, 
of 1865— Dept. of Virginia and North Carolina. G. O. 32, 33, of 1864— Dept. of the 
Ohio. G. O. 19 of 1865— Dept. of Kentucky. G. O. 17, 21, 33, of 1863— Dept. of the 
Tennessee. G. O. 3 of 1863; do. 6, 22, of 1864— Dept. and Army of the Tennessee. 
G. O. 14 of 1865; do. 5 of 1866— Dept. of Tennessee. G. O. 21 of 1863; do. 24 of 1864; 
do. 77, 112, of 1865— Dept. of the Missouri. G. O. 8 of 1866— Dept. of Florida. G. O. 
67 of, 1863; do. 74, of 1865— Dept. of the Gulf. G. O. 55 of 1864— Mil. Div. of W. 
Mississippi. G. O. 87 of 1867 — Second Mil. Dist. This punishment, however, has, 
since 1870, been discontinued in the practice of our courts martial, and this discon- 
tinuance is to be traced to the ruling of the Attorney General in an opinion addressed 
to the Secretary of the Navy in 1868 (12 Opins. 528) to the effect that a sentence 
of a naval court martial by which a contractor for naval supplies was excluded from 
future dealings for such supplies with the Government, was illegal; sentences of 
disability in general being further held to be "not in accordance with the custom of 
the service except where expressly authorized by law." This ruling was applied to 
a military case in G. C. M. 0. 22 (as also in do. 57,) to War Dept., &c., of 1870, and 
the punishment of disqualification imposed upon an officer disapproved as unauthor- 
ized. But whatever may have been the usage of naval courts martial, the very 
numerous precedents of cases in which such punishment had been adjudged by 
military courts for a great variety of offences, were, it is considered, quite sufficient 
to have established that this penalty was sanctioned by custom in the Army. In 
some instances the disqualification, as adjudged, has extended to the holding of 
public office in general; in others it has been confined to the holding of military 
office. But, while the disqualification for military office is less objectionable than the 
more general form, it may well be doubted whether this species of punishment, 
inasmuch as it assumes in effect to inhibit the exercise by the Executive of the 
appointing power, is within the authority of a court martial. As will be perceived 
from the above, this punishment has been discontinued in our service, but on another 
and less tenable ground. 



PARDON PARTIES TO CONTRACTS. 841 

order promulgating the remission, would be void and of no effect. 
C. 2170, Apr., 1896. 

XVI C. Where a soldier, prior to his entering upon a term of 
imprisonment under sentence, has been held confined in the guard- 
house, it has been a practice of the War Department to credit him 
with so many dajs on his term as he was so confined in excess of 30 
days. This is a form of remission of so many days of the term 
imposed by his sentence. R. 11, 380, Jan., 1865; 28, 340, 482, Jan. 
and Apr., 1869; P. 57, 371, Jan., 1893; 62, 368, Nov., 1893. 

XVI D. The discharge, by executive authority under the fourth 
article of war, of a soldier whose enlistment has not expired but who 
is undergoing a term of imprisonment imposed upon him by a sen- 
tence of court-martial (whicn did not also include the penalty of dis- 
honorable discharge, or imposed it to take effect at the end of the 
imprisonment), held to operate not merely as a discharge of the 
soldier from his enlistment but as a remission of the unexecuted term 
of his confinement and to entitle him to be set at liberty.^ R. 31, 
556, Aug., 1871; 41, 350, July, 1878; C. 11393, Oct. 17, 1901; 19972, 
June 27, 1906; 21722, July 9, 1907. 

XVI E. A sentence to confinement with forfeiture of pay imposes 
two distinct and independent punishments. Held that the remis- 
sion of an unexecutea portion of one would not affect the other.^ 
R. 38, 329, Oct., 1876; P. 45, 287, Feb., 1891; C. 1780, Oct., 1895; 
19145, Feb. 9, 1906. 

CROSS REPERKNCE. 

See Articles op War CXII A to E. 

After execution of sentence See Discipline XV I 2 a. 

Before conviction See Discipline XVII A 4 g (6). 

Can not create office See Opfice II A 1. 

Deserter See Desertion XV A to F; X A; XII A 1; 

XIV B. 
Enlistment I D 3 c (7). 

Eligibility for enlistment not restored See Enlistment I B 3 a; D 3 c (5); (6); 

(8); (9); (10). 

PARENT. 

Applies for discharge of minor See Discharge XII A. 

Dependency of. See Discipline XV F 8. 

Right over minor See Desertion III G. 

Enlistment I B 1 1j to 2. 

PAROLE. 

By civil courts See Discipline I E 3. 

Prisoner of war See War I C 11 d (2) to (3). 

Violation of. See Discipline II D 1 c. 

War I C 11 b; c (4). 

PARTIES TO CONTRACTS. 

See Contracts I to II. 

^ This opinion was approved and published in Circular letter from the War Depart- 
ment to department commanders, Aug. 12, 1871. And note an instance of its appli- 
cation — to the cases of twenty-three prisoners — in G. C. M. 0. 118, Dept. of the Mis- 
souri, 1871. 

2 Circular No. 63, War Department, 1906. 



842 PAKTISANS PATENT I. 

PARTISANS. 

Trial of, by civil courts See War I C 11 c (3). 

PARTNERSHIP. 

See Contracts XXX; XXXI. 

Bonds by See Bonds I R. 

One 'partner guarantor for other See Bonds I D. 

Signature by See Contracts LVI. 

PASS. 

See Absence. 

Injury while on See Desertion XVI C 5. 

Gratuity I A 3. 

Line of duty status See Gratuity T A 5 a. 

Medical attendance on See Claims VIII. 

PATENT. 

I. GRANT OF LETTERS PATENT IS PRIMA FACIE EVIDENCE THAT 

•PATENTEE WAS INVENTOR Page 842. 

n. ROYALTY. 

A. Is a Legal Lien Upon a Patented Article. 
m. ASSIGNMENT OF PATENTED RIGHT TO UNITED STATES. 

A. Does Not Preclude Assignment to Another Country Page84S. 

TV. QUESTION OF INFRINGEMENT. 

A. United States Requires Bond for Indemnification Against Loss. 
V. INVENTOR CAN NOT SERVE ON BOARD WHICH IS CONSIDERING 

HIS INVENTION. 
VI. INVENTION NOT YET PATENTED., 

A. Is A Property Right. 
Vn. PATENT BY OFFICER. 

A. Without Fee, Government Does Not Pay Royalty Page 844- 

B. Rule as to Use of, by Government. 

C. Assignment of Patent. 

I. The presumption in favor of the vahdity of a patent, arising 
from the action or the authorities in granting it, can be 6vercome only 
by rehable and certain proof.^ The grant of letters patent is prirna 
facie evidence that the patentee was the first inventor of the device 
described in the letters, and of its novelty.^ So, held that a claim by a 

Batentee for a reasonable royalty for the use of his patent by the 
^nited States was not impugned by the affidavits of a third party to 
the effect that he was the real inventor, when such party had taken no 
action to contest the issuance of the patent nor resorted to the courts 
for his legal remedies. P. 53, 4I6, May, 1892. _ Theuse of a patent 
with the knowledge and consent of the patentee is an implied promise 
or agreement to pay for the same. C. 725, Dec., 1894; 6107, Mar. 
23, 1899; 8321, Aug. 20, 1900; 22877, Mar. 10, 1908. 

II A. An existing royalty on a patented article is in the nature of a 
legal lien upon it, to be paid off before it can be safely used, and is 
also an element properl}^ entering into the price to be paid for it, if 
purchased. The article is in law sold subject to this claim. So, held 

> Osborne v. Glazier, 31 Fed. Rep. 402. 
2 Cantrell v. Wallick, 117 U. S. 695. 



PATENT III A. 843 

that the United States, in purchasing a patented article, as being 
necessary to the due prosecution of a certain work provided to be done 
by an appropriation act should justly pay a price estimated by the 
intrinsic value of the article, augmented by the probable amount of 
the royalties likely to accrue as income. P. 44, ^^8, Dec, 1890; C. 
8321, Aug. 20, 1900; 17647, Mar. 10, 1905. 

III A. The assignment to the United States of a patent right, 
for use in the pubUc service/ does not preclude the assignor from also 
assigning the right to a foreign government, provided the original 
assignment were not absolute in its terms. A sale of patent right 
for use in one district is not incompatible with a sale for use in another, 
such sales being in the nature of independent licenses. But, as a 
general rule, the United States should accept in such a case nothing 
short of an absolute assignment. P. 54, 214, June, 1892. 

IV A. Where the lowest bidder for a dredging contract proposed 
to use a dredging machine which had become the subject of a suit 
against him for infringement of a patent, advised that if deemed 
proper to accept the bid and enter mto a contract, a clause should 
be required to the effect that in the event of any legal proceedings 
by other parties agaijist the United States or any of its officers or 
agents for the infringement of any patent or claimed patent, during 
the execution of the work, or afterwards, the contractor shall hold the 
United States harmless and refund to it all expenses, damages and 
outlays of every kind it may be subjected to on account of the same. 
And that if said proceedings tend to create delay in the execution 
of the work, the United States shall have the right to immediately 
employ other parties to complete the same, the contractor to reim- 
burse the United States for any extra amount it may have to pay 
for such completion over and above the amount which the contractor 
would have been entitled to for the same work. C. 725, Dec, 1894; 
4558, July, 1898; 23546, July 3, 1908. 

V. While it is clearly a violation of law (act of Feb. 18, 1893, 27 
Stat. 461) for the inventor of a device (range finder) considered and 
adopted by the Board of Ordnance and Fortification "to be a mem- 
ber or serve on said board, " the act does not, where he has in fact 
so served, prohibit the purchase of the instrument invented by him. 
It merely affects his ehgibility for membership of or service on the 
board. C. 6941, Aug., 1899. 

VI A. An invention is property though it be not patented, and an 
injunction will be granted to restrain an infringement though the 
patent has been merely applied for. Thus it is safer for the United 
States not to purchase the right to use an invented article from any 
person other than the inventor, since a liability to the latter might 
thus attach.2 P. 43, 264, Oct., 1890. Held that, should the Govern- 
ment make a purchase — from a person other than the inventor but 
claiming to be such^ — ^of telephones, the sale of which had been en- 
joined by the real patentee, tne United States would be liable to him 
in damages, whether or not the fact of infringement or illegal sale 
was actually known at the time of the purchase. P. 57, 297, Jan., 

1 See act of June 25, 1910 (36 Stat. 851) under which the United Statea is entitled 
to free use of any patent by any one in its employment or service. 

2 See James v. Campbell, 104 U. S., 356. 



844 PATENT VII A. 

1893. The Government becomes a tort-feasor in permitting the 
use in its service of an infringed patent.* C. 725, Dec, 1894. 

VII A. Provision for the issuance of a patent to persons who in- 
vent or discover ''any new and useful art, machine, manufacture 
or composition of matter, or any new and useful improvement thereof 
not known or used by others in this country, and not patented or 
described in any printed pubUcation in this or any foreign country," 
etc., is made by law. Held that, under the act of March 3, 1883 (22 
Stat. 625), an officer of the army is entitled to the issuance of a patent 
without any fee for an invention of the class enumerated above and 
if so patented the United States is entitled to use the patent without 
payment of royalty .^ G. 12517, Apr. 28, 1902. 

VII B. It is well settled by decisions of the United States courts 
that where a person m the employ of the United States, using Govern- 
ment time and Government funds for the purpose and in the line of 
his duty, makes an invention and takes out a patent on the same, the 
Government has an implied license 4:o use the invention, with an 
unrestricted right to manufacture it or have it manufactured for its 
use; but that where a person in Government employ, and not specific- 
ally employed for the purpose makes an invention he is entitled to the 
benefits of the same.^ Held, therefore, that an officer was entitled to 
compensation for the use by the United States of his patented pneu- 
matic gun. P. SI, 106, Mar. 15, 1889. Also held, with respect to 
certain portable field ovens invented by officers and soldiers in the 
line of their duty and at the cost of the United States, that the United 
States had the right to manufacture or have manufactured for its use 
the patented articles. C. 25188, June 25, 1909, July 29, 1909, and Oct 
31, 1910. Similarly Tield, with respect to a process for forage rations 
{id., Dec. 28, 1910) ; with respect to machinery for operating lock gates 
of the Isthmian Canal {id., Apr. 21, 1911); with, respect to a blast 
meter {id., June 28, 1911); and with respect to a device for an oscillat- 
ing tool box {id., Nov. 27, 1911). 

VII C. Held that the act of June 25, 1910 (36 Stat. 851), gives to a 
bona fide patentee a right to recover reasonable compensation for an 
article patented by him which is used by the United States, but 
enables the United States to avail itself of any and all defenses, general 
or special, which might be pleaded by a defendant in an action for 
infringement; it also provides that the benefits of this act shall not 
inure to any patentee who, at the time of making his claim, is in the 
employment or service of the United States and, what is more impor- 
tant, makes the act applicable to the assignee of any such patentee. 
C. 27038, July 15, 1910. 

1 See Schillinger v. U. S., 155 U. S., 163. 

2 See Act of June 25, 1910 (36 Stat. 851). 

3 See U. S. V. Burns (12 Wal., 246); Solomons v. U. S. (21 Ct. Cls., 479-83, and 22 
id., 335); Solomons v. U. S. (137 U. S., 346); Gill v. U. S. (160 U. S., 426); Gill v. 
U. S. (25 Ct. Cls., 415); McAleer v. U. S. (150 U. S., 424); and Fager i;. U. S. (35 Ct. 
Cls., 55&-568). See, however, act of June 25, 1910 (36 Stat. 851), which authorizes 
a suit against the United States for infringement of patent rights with the proviso that 
the act shall not "apply to any device discovered or invented" by an employee of the 
United States, "durmg the time of his employment or service.*' While no suit for 
infringement can be brought under the statute in respect to such device, the statute 
stops short of changing the law as above stated. 



PATENT PAY AND ALLOWANCES: SYNOPSIS. 845 

CROSS REFERENCE. 

Infringement of See Claims II. 

PAY. 

See Pay and allowances. 

Absence without leave .•--.■-■ ^^® Absence II A 2. 

Armed civilian employees in Philippine 

Islands See Insignia of merit III B 3. 

Board of officers on damaged property See Militia XI I. 

Cadet on furlough See Army I D 2 a. 

Can not be attached See Army I C 2. 

Can not be stopped to pay private debts See Private debts II. 

Certificate of merit See Insignia of merit II D. 

Chief of Philippine Constabulary See Command I C. 

Deposit of See Command VI B. 

Engineer officer See Navigable waters X B 1 a. 

Extra See Civilian employees X to XI. 

Extra duty See Discipline IV B 2 a. 

Extra to mounted officers See Militia XI F. 

Extra while on detail See Communications I C. 

Forfeiture of See DiscbLiNE XII B 3 e (1) to (5). 

Joint encampment See Militia VI B 2 d. 

Longevity See Militia XI G. 

Longevity of retired officers See Retirement I L 1. 

Militia See Mililia XI to XII. 

Muster for, is not muster-in See Volunteer Army II A 2. 

Of deserters. See Desertion V D to E 6; XIV A to F. 

Of discharged soldier See Articles op War LX E 4. 

On furlough See Absence I C 4 h. 

On leave See Absence I B 1 g (2); 1 m (1). 

Reduced by law See Enlistment I A 5. 

Retired soldier See Retirement II B 5; C to D. 

Seaman See Civilian employees XV A. 

Stoppage See Civilian employees II to III. 

Government agencies I B, C 

Suspension from See Discipline XII B 3 f (3) (a^ 

Suspension of cadet without See Army I D 3 b (1). 

Volunteers previous to muster-in See Office V A 5 a (2). 

While in hands of civil authorities See Command V A 2 c 

PAY ACCOUNT. 

Not commercial paper See Pay and allowances I B 4. 

Not signed in blank See Pay and allowances IBS. 

PAY AND ALLOWANCES. 

I. PAY. 

A. In General. 

1. Right to, by officers and enlisted men. 

a. Begins and ends with period of legal service Page 849 

b. Can be overthrown only by operation of law Page S50 

c. Not affected by status of arrest. 

d. Foreign-service pay. (See Pay Manuxil.) 
B. Officers' Pay. 

1. Rule as to when right to, begins. 

a. Appointment with back pay requires act of Congress. 

2. \Miile on "waiting orders." 

3. Pay accounts should not be receipted in blank Page 851 

4. Pay account is not commercial paper. 

5. May be paid to guardian. 

a. Even to a wife. 



846 PAY AND allowances: synopsis. 

I. PAY— Continued. 

B. Officers' Pay — Continued. 

6. Longevity pay. {See Pay Manual). 

a. Service as medical cadet counts. 

7. Extra pay when mounted, etc. 

a. Duty must require officer to be mounted Page 85P. 

(1) Assistant quartermaster at quartermaster depot, 

b. Mount must be "suitable." 

C. Enlisted Men's Pay. 

1. Title passes to soldier upon receipt of pay. 

2. Not entitled to pay while absent without leave, and, if deserter, until 

restored to duty Page 853 

3. No pay while in hands of civil courts, if convicted Page 854 

4. Payment may be made to guardian. 

5. Continuous-service pay. 

a. In counting continuous-service deduct all absence without 

leave. 

b. Continuous service can not be carried back to a date. 

(1) Preceding a discharge without honor. 

(2) Preceding a dishonorable discharge. 

c. Philippine Scouts not entitled to reenlistment bonus. Page 855 

6. Extra-duty pay. 

a. Paid only for labor which may be legitimately performed in 

military service by soldier. 

b. For constant labor for a period of not less than 10 days. 

(1) To clerks at post and regimental headquarters. 

(2) To school-teacher at arsenal. 

(3) To enlisted men of staff department for duty in other 

departments. 

(4) To cooks not regularly appointed Page 856 

(5) To messenger at post laundry. 

c. Not paid in time of war. 

(1) Except from company, bakery, or post-exchange funds. 

d. Paid out of special appropriations. 

7. Deposits. 

a. Money deposited to secure a discharge is unconditional like 
any other deposit. 

(1) And can not be refunded Page 857 

8. Allotments. 

a. Voluntary. 
n. ALLOWANCES. 
A. In General. 

1. Heat and light. 

a. Furnished only to buildings used by officer or enlisted man at 

his post of duty. 

b. No limit fixed on cost of heat and light to Government. 

c. Allowance to officers. 

(1) Right accrues after assignment to quarters or allowance 

of commutation. 

(2) Heat and light is an allowance in kind and can not be 

commuted into money: Page 858 

(3) Officer drawing commutation of quarters does not lose 

right to heat and light for temporary absence in hos- 
pital for treatment. 



PAY AND ALLOWANCES: SYNOPSIS. 847 

n. ALLOWANCES— Continued. 
A. In General — Continued. 

1. Heat and light— Continued. 

c. Allowance to officers — Continued. 

(4) Chief and the assistant chiefs of Constabulary entitled 

to allowance of heat and light on their actual rank in 
the Army only. 

(5) Right to increased allowance accrues at date of promo- 

tion. 

(6) An officer who retains quarters at a post or draws commu- 

tation of quarters while on leave of absence is entitled 
to his allowance of heat and light. 

d. Allowance to enlisted men. 

(1) In leasing quarters for enlisted men lease should stipu- 

late that heat and light will be furnished. 

(2) Right to heat and light not affected because enlisted man 

draws commutation of quarters Page 859. 

(3) Enlisted men living outside of reservation not entitled 

to heat and light. 

e. Not to be sold to others than officers and enlisted men. 

2. Allowance to officer. 

a. Transportation. 

(1) For himself. {See Mileage in Pay Manual and Army 

Regulations, and Transportation of officer in Army 
Regulations.) 

(2) Of horse. 

(a) When changing station. 

[1] Reimbursement of expense of. 
(6) From other place than last station. 

(3) Of baggage. {See Army Regulations, Transportation oj 

the Army — Baggage.) 

b. Quarters. {See Army Regulations.) 

(1) Commutation of quarters Page 860. 

(2) Use of quarters by officer's family while officer is on 

duty that carries commutation. 

(3) Stops when traveling on duty Page 861 . 

c. Interment, expense of. 

(1) Not allowed if officer on sick leave. 

(2) Temporary interment does not preclude permanent 

interment elsewhere. 

d. Forage. 

(1) A horse must be owned and actually kept. 

(a) Act of May 11, 1908, does not change that fact. 
{b) Duty requires a mount Page 862. 

(2) Ficticious assumption of ownership does not carry right 

to forage. 
5i. To enlisted men. 

a. Clothing allowance. 

(1) Not a part of pay. 

(2) Not credited when pay is not earned. 

(3) Forfeiture. {See Pay and Allowances III C to D.) 

{a) Forfeited by sentence of court-martial. Page 86S. 

(4) Clothing issued in kind. 

(a) Does not become private property. 



848 PAY AND allowances: synopsis. 

n. ALLOWANCES— Continued. 
A. IiJ General — Continued. 

3. To enlisted men — Continued. 

a. Clothing allowance — Continued. 

(4) Clothing issued in kind — Continued. 

(6) When discharged without honor for fraudulent 
enlistment soldier not permitted to take cloth- 
ing drawn in excess of allowance with him. 

(c) Upon return from desertion a soldier can not claim 

clothing left behind at desertion as private 
property. 

(d) Gratuitous issues. 

[1] To replace clothing destroyed. 

[a] In campaign. 

[b] To prevent contagion Page 864 

[c] By fire. 

(e) To dishonorably discharged soldier. 

[1] Not authorized unless sentenced to con- 
finement. 

b. Rations. (See Army Regulations and Subsistence Marnuil.) 

(1) Commutation. 

(a) Rates of are fixed by Secretary of War. 
(6) When traveling. 

[1] Limited to the trip. 
m. DEPRIVATION OF PAY AND ALLOWANCES. 

A. Of Officer. 

1 . Can not be done by summary dismissal Page 866 

a. Or by nunc pro tunc summary dismissal. 

2. Can not be done by implication. 

a. Case of suspension from service. 

B. Stoppage. 

1. In connection with arrest as deserter. (See Desertion.) 

2. May be collected in monthly amounts. 

3. Overpayments to employees may be stopped against the dis- 

bursing officer. 

4. Can not be stopped to satisfy private claims Page 866 

5. Is a "charge on account" to make good a loss. 

6. Can not be made to reimburse a personal indebtedness. 

a. Which grows out of an incorrect final statement Page 867 

7. May be made to reimburse company fund. 

a. Even in paying account of deceased officer. 

C. Forfeiture. 

1. By sentence of court-martial. 

a. Of pay earned. 

(1) If sentenced to dishonorable discharge. 

(a) Forfeits pay due at discharge. 

[1] If discharge remitted, forfeits pay due at 

date of receipt of order at post. 
[2] If paid before discharge, title to money 

paid passes Page 868 

(2) Applies only to current enlistment. 

b. Of pay to be earned . 

(1) Sentence operates from date of promulgation. 



PAY AND ALLOWANCES I A 1 a. 849 

m. DEPRIVATION OF PAY AND ALLOWANCES— Continued. 

C. Forfeiture — Continued. 

1. By sentence of court-martial — Continued. 

c. Of pay and allowances due and to become due. 

(1) Forfeits commutation of quarters, fuel, and rations. 

d. Of "all pay and allowances" for a certain period. 

(1) Necessary clothing and subsistence may be issued. 

e. Destruction of record before approval. 

(1) Forfeitures nullified. 

f. Sentenced to dishonorable discharge. 

(1) Forfeits travel pay. 

g. Money forfeited returns to the Treasury. 

(1) There credited to the pay of the Army even if accrues 
from forfeitures in volunteers Page 869 

2. Forfeitures otherwise than by sentence. 

a. Clothing allowance on discharge without honor for fraudulent 

enlistment. 

b. Pay and allowances while absent without leave. 

c. Travel allowances. 

(1) Wlien discharged without honor for fraudulent enlist- 

ment. 

(2) When discharged without honor on account of convic- 

tion by civil comt. 

(3) \Mien discharged by way of favor. 

(4) WTien dishonorably discharged. 

d. Public property lost charged to soldier Page 870 

D. Fines. 

1. Accrue only by sentence of court-martial. 

2. Accrue to United States only. 

3. Distinguished from stoppage. 

E. Remission of Forfeiture. 

1. Operates only on pay not due. 

F. Commutation of Dismissal of Cadet to Suspension. 

1. Does not forfeit pay. 

I A 1 a. The right to pay begins and ends with the period of legal 
service. Except by special authority of Congress, an officer or soldier 
can not be paid for military service rendered before appointment, 
enlistment, or muster in. R. 38, 120, July, 1876. A soldier, however, 
who by accident or through some exigency of the service, is held to 
service for a period after the date on which his term of enlistment 
expired, is properly entitled to be paid for such additional period. 
R. 29, 424,^ Nov., 1869; 38, 662, July, 1877. So, a soldier, detained 
in the service, after his term of enlistment has expired, by reason of 
the pendency of proceedings under charges preferred against him, and 
who, upon trial is acquitted or sentenced to a punishment not includ- 
ing forfeiture of pay, and is thereupon discharged, is entitled to be 
paid up to the date of discharge. R. 21, 448, June, 1866. An 
officer separated from the service by dismissal, by being "wholly" 
retired, or by resignation, is entitled to be paid up to the day on 
which he personally receives official notice of the order or act thus 
detaching him from the Army and making him a civilian. R. 27, 4^3, 
426, Mar., 1869; 30, 549, Aug., 1870. An officer or soldier can not 
93673°— 17 54 



850 PAY AND ALLOWANCES I A 1 b. 

be dismissed, discharged, or mustered out as of a prior date, with the 
effect of depriving him of pay accrued between that date and the date 
of the actual discharge, etc.^ R. 16, 4.O6, July, 1865; 22, 506, Dec, 
1866; C. 17173, Nov. 17, 1904; 20446, Sept. 27, 1906. 

I A 1 b. While he remains in the military establishment, an officer 
or soldier, whether or not actually performing military service, can be 
deprived of his legal pay only through a duly adjudged and approved 
sentence of court martial, or by the operation of law under some express 
statutory enactment or Army regulation.^ The fact that an officer or 
soldier is under charges, in arrest, or waiting sentence, can not (except 
in so far as his case may be within the application of Army Regula- 
tions, affect in any manner his right to the regular pay of his rank. 
R. 12, 230, Jan., 1865; C. 14787, June 12, 1903; 16955, Sept. 29, 
1904. 

I A 1 c. The imposition of an arrest affects in no manner the right 
of an officer or soldier to receive the pay and allowances of his rank. 
R. 9, 64, May, 1864; 12, 230, 1865; 13, 386, Feb., 1865; 23, 18, June, 
1866. Except in a case of a deserter no legal inhibition exists to 
paying a soldier while in arrest — either before trial or while awaiting 
sentence — his regular pay and emoluments.^ R, 30, 419, June, 1870; 
C. 14787, June 12, 1903. 

I B 1. Held, that in the case of an original appointment an officer's 
pay begins to run from the date of acceptance of the appointment, 
and in the case of promotion from the date of vacancy.* C. 19425, 
Mar. 17, 1906. 

I B 1 a. There can be no question as to the power of Congress to 
authorize the appointment of an officer with both rank and pay from 
a back date. So the President (except where expressly prohibited 
by statute) may, with the concurrence of the Senate, appoint an 
officer with rank from an earlier date, though not, except by express 
authority of Congress, with back pay.^ R. 43, 208, Feb., 1880. 

I B 2. Held, that an officer ordered to his home to await orders did 
not occupy the status of an officer on leave of absence, and was not, 
therefore, on half pay during the period of thus awaiting orders, but 

1 See AUstaedt v. United States, 3 Ct. Cls., 284; VII Comp. Dec. (dated Mar. 16, 
1901). On the other hand, where an officer who has been dismissed is restored (by 
the authority of Congress) to office with the rank which he had when dismissed, or 
other rank of a date prior to the restoration, he is not thereby entitled to back pay. In 
Buch cases in the absence of any grant of pay in the statute "the relation back is for 
rank only, not pay." 4 Ops. Atty. Gen., 603; 5 id., 101, 132; 9 id., 137. 

^ See, to the same effect, the opinion of the Attorney General in 15 Ops., 175. 

^ See A. R. 986, 1910 ed., which provides that a soldier awaiting result of trial will 
not be paid before the result is known. 

^ In the absence of a statute requiring adjustment on a different basis, pay of an 
officer begins with the date of acceptance. (Dig. 2d Comp. Dec, vol. 3, sees. 892, 
908, 933. See, also, U. S. v. Flanders, 112 U. S., 88; U. S. v. Eaton, 169 id., 331; 
16 Op. Atty. Gen., 38; IV Comp. Dec, 496; VI id., 672.) The acceptance may be 
implied from the entry upon the discharge of the duties of the office (Am. & Eng. 
Ency. of Law, 1st ed., vol. 19, p. 437), and such acceptance may, it seems, be of an 
anticipated appointment so that it will take effect and pay begin when the appoint- 
ment is complete and prior to notice thereof. (V Comp. Dec, 375; VII Comp. 
Dec. 511.) 

See Pay Manual 496 and 498, 1910 ed. 

« 4 Op. Atty. Gen., 318, 603, 608; 5 id., 132; 8 id., 223; United States v. Vinton, 2 
Sumner, 299. 



PAY AND ALLOWANCES I B 3. 851 

was entitled for such period to the full pay of his rank.* R. 31, 599, 
Aug., 1871. An officer relieved from duty and placed on "waitmg 
orders/' by the direction of the Secretary of War, is not Uable to loss 
of pay by reason of such status. P. 63, 106, Dec, 1893. 

I B 3. Held, that the principle enunciated in Army Regulations of 
forbidding officers to take or receive receipts in blank for public 
money or property is sound and no good reason exists for making an 
exception m the case of officers' pay accounts. P. 58, 1^.26, Mar. 27, 
1893. 

I B 4. An officer's "pay account" is not commercial paper, but, in 
its legal aspect, a mere receipt.^ So held that a bona fide assigneee of 
an officer's pay account for a certain month, who, on receiving pay- 
ment thereon from a paymaster, delivered to the latter the account 
with his name written on the back of the same, did not thereby incur 
the obligation of an iiulorser, or render himself liable as such for the 
amount to the paymaster, on its being ascertained that the officer had 
already himself drawn his pay for that month, and that a double 
payment had thus been made.' R. 1^3, 68, Oct., 1879. 

I B 5. Held that where an officer has been declared non compos 
mentis the War Department will on proper representation, recognize 
the committee or guardian appointed by the civil authorities and 
undertake to pay to such committee or guardian the salary due the 
officer, a 29315, Dec. 12, 1911. 

I B 5 a. The Government has no power to compel an officer of the 
Army to furnish his wife, for her support, with a certain proportion, 
or any part, of his pay. Where such an officer is confined in an insane 
asylum, his wife may, by having a curator appointed, be enabled to 
avail herself of his pay for the support of herself and her family. P. 
59, 348, May, 1893. The wife of an officer under treatment at the 
Government Hospital for the Insane, who has been duly appointed, 
and has given bond, as the guardian of her husband, under the laws of 
the State of her residence, may, by the authority of section 952, R. S. 
(District Code), collect and receive his pay or other moneys that may 
be due him in the same manner as if her "authority had been derived 
from the tribunals of the District." P. 57, 479, Feh , 1893. 

I B 6 a. In considering service for the purpose of computing lon- 
gevity pay under section 1262, R. S., held that service as a medical 
cadet may be counted, as such cadets, although not privates or non- 

' This opinion was affirmed, in the same case (United States v. Williamson) by the 
Court of Claims, in 1873 (9 Ct. Cls., 503), and by the Supreme Court, in the next 
year (23 Wallace, 411). But in United States v. Phisterer, 4 Otto, 219, it was held 
that an officer, ordered to his home to await orders, was not entitled to commutation 
for quarters and fuel, his home not being a "station." See G. O. 78, Hdqrs. of Army, 
1877, issued in consequence of this decision. But see the case of United States v. 
Lippitt, 10 Otto, 663, where the officer was ordered to th& headquarters of a military 
department to await orders. 

^ Note in this connection the opinion of the Attorney General, in 16 Op., 191, to 
the effect that an approved account or voucher issued to a contractor for an amount 
due him under his contract is "not in any proper sense negotiable paper." 

' Under date of Dec. 27, 1911, the comptroller held that the practice of drawing 
checks to the order of the indorsee in the payment of officers' monthly pay accounts 
indorsed for deposit to the credit of themselves, or other persons named, with indi- 
viduals or institutions is in violation of sec. 3620, R. S. This decision does not affect 
the right of an officer to transfer his account on or after maturity under the act of Mar. 2, 
1907, which reads: "Hereafter all commissioned officers of the Army may transfer or 
assign their pay accounts, when due and payable, under such regulations as the Secre- 
tary of War may prescribe." 



852 PAY AND ALLOWANCES I B 1 a. 

commissioned officers, were clearly enlisted men.* R. 43, 196, Feb. 
14, 1880; a 21108, Feb. 23, 1907. 

I B 7 a. The designation in Army Regulations of classes of officers 
who are required to be mounted is not conclusive that such officers 
are entitled under all conditions to additional pay when they pro- 
vide suitable private mounts, but that the duty which the offi^cer is 
performing is the test as to whether or not he is required to be mounted, 
and whether or not, in view of his providing suitable mounts for 
such duty, he is entitled to mounted pay for the time being. ^ C. 
27952, Sept. 8, 1911; 28285, May 6,1911. 

I B 7 a (1). Held that, under section 1270 R. S., the duty of acting 
assistant quartermaster, at a general depot of the Quartermaster's 
Department, is one that requires an officer to be mounted. C. 19403, 
Mar. 20, 1906. 

I B 7 b. Held, that the act of May 11, 1908 (35 Stat. 108), condi- 
tions the increased pay therein authorized upon the number of horses 
owned. Held, that if one suitable mount is owned an addition of 
$150 accrues. If two are owned the officer becomes entitled to $200. 
No "first" or "second" mounts are recognized or provided for in the 
statute. All mounts for which pay is drawn must be suitable, and if 
suitable the owner becomes entitled to the allowances above indi- 
cated .^ C. 24000, Oct. 23, 1908. 

I C 1. A soldier in confinement awaiting the result of his trial by 
court-martial was, contrary to (paragraph 986) Army Regulations 
(1910), paid one month's pay, which, in compliance with instructions, 
he delivered to the officer of the day, who turned it over to the adjutant 
of the post. The latter delivered it to a paymaster with the state- 
ment that at the time of payment the prisoner was ''awaiting result 

> For the law controlling longevity pay see sec. 1262, 1263, and 1267, R. S., and sec. 
7 of the act o^June, 18, 1878 (20 Stat. 150); act of Feb. 24, 1881 (21 Stat. 346); act of 
June 30, 1882 (22 Stat. 118); act of June 30, 1902 (32 Stat. 511); act of Mar. 2, 1903 
(32 Stat. 932); and act of May 11, 1908 (35 Stat. 108). See also Pay Manual Subject, 
Longevity Pay, and Army Regulation subject Longevity Pay. 

2 See XVI Comp. Dec, 113, in which it is remarked as follows: "Bearing in mind 
the purpose of the act of May 11, 1908, is to give the same regular pay to officers of the 
Army of corresponding grades in all branches of the service, whether mounted or not 
mounted, before an officer is entitled to receive said addition to his pay as in said 
act provided, it must appear that he was required to be mounted and that he provided 
himself with suitable mounts at his own expense. * * * If a captain of cavalry 
is not required to be mounted, although he should provide himself with mounts at 
his own expense, he is not entitled to said addition to his pay. In this respect, as in 
respect to regular pay of officers of corresponding grades, Army officers in all branches 
of the service are upon an equal footing. An assignment of a captain of cavalry to 
duty on a Government transport, where he is required to perform duty at sea, is obvi- 
ously an assignment to a duty the performance of which does not require him to be 
mounted. In such case the United States would not furnish him with mounts and 
horse equipments in kind, nor would he be entitled to an addition to his pay if he 
should under such circumstances provide himself with suitable mounts at his own 
expense. Upon such facts the certificate of the officer that he was required to be 
mounted and that he provided himself with suitable mounts at his own expense would 
not be conclusive upon the accounting officers. On the other hand, if an Army officer, 
whether Cavalry, Artillery, or Infantry, is required to be mounted and while so required 
provides himself with suitable mounts at his own expense, is temporarily detached 
from the station where his mounts are kept, so long as his mounts are actually and 
exclusively owned and kept for his use in the military service, such mere tem- 
porary detachment from such station would not deprive him of his right to said 
additional pay." 

' For definition of "suitable mount," see G. O. 29, War Department, Washington, 
Mar. 4, 1911. 



PAY AND ALLOWANCES I C 2. 853 

of trial." The paymaster deposited it to the credit of the TreasuFer 
of the United States. Held, that upon payment to the soldier the 
title to the money vested in him, and admsed therefore that his appli- 
cation for reimbursement be referred to the Auditor for the War 
Department. C. 3258, June, 1897; U787, June 12, 1903; 12227, Feb. 
13, 1907. 

I C 2. As the enlistment of a soldier is a civil obligation, the con- 
tractual rights of the Government or of the soldier should be deter- 
mined, to some extent at least, by the rules governing the interpre- 
tation and execution of contracts. It has also been the endeavor of 
this office to discourage the disposition, in determining the right to 
pay, to attach too much weight to the findings of courts-martial, and 
to the acts of convening officers in reviewing records of trial. 

Courts-martial are executive agencies that are charged by law 
with the performance of certain judicial functions; but, like other 
courts having criminal jurisdiction, they are without power to pass 
upon questions of civil responsibility or contractual obligation or to 
dispose of the pay of an accused person, save to direct that it be 
applied in the satisfaction of a fine unposed by way of punishment 
for an offense. The tendency is to regard the court-martial as a 
tribunal which is competent to pass upon questions which relate to 
the civil obligation of the soldier, and to accept its judgments in that 
regard as final. 

It would seem that, when an undertaking exists by which the sol- 
dier agrees to serve, for a definite period of time, at certain rates of 
pay, h6 is entitled to pay for the time he serves and, fer contra, is not 
entitled to pay for time during which, through the fault of the soldier, 
no service has been rendered under his enlistment contract. If it be 
claimed in behalf of the soldier that he was prevented from rendering 
service, but that he otherwise stood ready to render it, then the burden 
would be upon him to show that such an impossibility of performance 
existed. 

A court-martial has jurisdiction to try the criminal offenses of 
desertion and absence without leave; that is, the court is authorized 
by law to determine whether an offense against the thirty-second or 
forty-seventh articles of war have been committed. If the soldier be 
tried for either offense, and is acquitted, the acquittal has weight in 
determining whether service under his enlistment contract has been 
rendered. But it is not necessarily decisive; and, under the rules 
to which I have alluded, it would be possible to state his accounts, 
under his contract, without a reference to the collateral conclusions 
which have been or may be reached by the court-martial. C. 17768, 
June 17, 1905. Held, m the case of an enlisted man who was con- 
victed of desertion, but whose conviction was set aside by the con- 
vening authority, as the records showed that for a period of more than 
a year, the soldier had been absent from duty and had rendered no 
service under his enlistment contract, that he was not entitled to pay 
during the period of such unauthorized absence. C. 17768, June 17, 
1905. In computing the period during which a soldier is not entitled 
to pay on the ground that, by reason of his absence, he has failed to 
render service under his contract of enlistment, the view expressed 
by the comptroller ^ evinces no disposition to trespass upon the field 

» XII, Comp. Dec, 328. XV. id., 661; Pay Manual, 1910 Ed., 246, 247, 248. 



854 PAY AND ALLOWANCES I C 3. 

of activity prescribed by law for the several bureaus and offices of the 
War Department. Held, that where the facts upon which compu- 
tations of time are based are not fuUy set forth upon the muster 
rolls which have been referred to an officer of the pay department, 
the facts as they stand of record should be obtained from The Adjutant 
General, who is their legal custodian. C. 17768, Mar. 9, 1906. 

Similarly held, in the case of a deserter, that he is not entitled to 
pay until he is restored to a duty status. C. 25833, Dec. 14, 1911. 

I C 3. The requirements of army regulations are that officers and 
enlisted men absent in confinement by the civil authorities receive 
no pay during such absence; if released without trial, however, or 
after trial and acquittal, their right to pay for the period of such 
absence is restored; held that the reason for this regulation is that 
if a soldie"r is withdrawn from duty by his own fault, so that he can 
not earn his pay, he is not entitled thereto; but that if he is with- 
drawn from duty without fault on his part, he should not be deprived 
of his pay. The regulation assumes that if the civil authority released 
him without trial, or tried and acquitted him, his failure to render 
service was not due to his fault; but that if his trial resulted in con- 
viction, the arrest and consequent withdrawal from duty was due 
to his fault, a 16561, July 8, 190^. 

I C 4. A competent State court appointed a guardian of the person 
and estate of a retired enlisted man of the United States Army, resi- 
dent in that State, who had been duly found to be an incompetent. 
To avoid the order of the court the latter left the State and requested 
that a paymaster outside the State make payment to him. Held that 
his pay could legally be delivered to the guardian.^ C. 3676, Nov., 
1897; 153U, Oct. 9, 1903. 

I C 5 a. In counting continuous-service time all absence without 
leave should be deducted. There is no legal relation between '' con- 
tinuous service" and ''terms of enlistment." Under the former head 
only service unforfeited by reason of absence without leave can be 
counted; a term of enlistment, upon the other hand, is not affected 
by the fact that the soldier durm^ that particular term may have 
been absent from his command without leave. ^ 0. 184-38, Apr. 4, 
1907, and June 24, 1908. 

I C 5 b (1). Where a soldier was discharged without honor and 
allowed to reenlist, or, to speak more correctly, where service under 
a subsequent fraudulent enlistment was accepted by the department, 
held, that he is not entitled to continuous-service pay, as his dis- 
charge from his last preceding enlistment was not honorable. C. 
22855, Mar. 11, 1908. 

I C 5 b (2). The operation of a dishonorable discharge being to 
terminate all unexpired enlistments, where a soldier who had been 
dishonorably discharged afterwards enlisted in the volunteer forces, 
from which he was honorably discharged on January 29, and on 
May 15, 1901, again enlisted in the Regular Army, held that the 
status of such soldier is that of one who enlisted on May 15, 1901, 
and service in a prior enlistment terminating in a dishonorable dis- 

* Concurred in by the comptroller under date of Jan. 8, 1898. 
2 See XV Comp. Dec, 79, 165, 339. 



PAY AND ALLOWANCES I C 5 C. 855 

charge can not be considered in determining his pay status.' C. 
2233S, Nov. 9, 1907. 

I C 5 0. Held, that PhiUppine Scouts are not entitled, under sec- 
tion 36 of the act of February 2, 1901 (31 Stat., 755), in the absence 
of regulations in furtherance thereof, to the bonus for reenlistment 
which is granted to enlisted men of the Regular Army m the act of 
appropriation for the support of the Army. C. 23990, Oct. 21, 1908. 

I C 6 a. The provision as to extra-duty pay of section 1287, E,. S., 
is evidently intended to cover only such labor as may legitimately be 
performed in the military service by soldiers as such. &>o held that 
an enlisted man could not legally be paid extra-duty pay for services 
proposed to be rendered as a telegraph operator to a private telegraph 
company, the same being an employment for which he could not 
legally be detached from his legitimate duties as a soldier. R. 51, 
281, Dec, 1886. 

I C 6 b. The extra-duty pay is payable only for ' * constant labor for 
a period of not less than ten days." Thus lield, that a noncommis- 
sioned officer who acted, during a single day, as auctioneer at a sale 
of condemned quartermaster stores was not legally entitled to the 
payment of a 10 per cent commission on the proceeds of the sale or 
to any other compensation whatever,^ and that the post quartermaster 
in paying him the said commission was chargeable with a misappli- 
cation of public funds. P. 60, 363, July, 1893; 62, 95, Oct., 1893; 
C. 6988, Sept. 12, 1899; 11983, Feb. 1, 1902. 

I C 6 b (1). The Army appropriation act of 1885-86 (23 Stat. 359) 
provided that thereafter extra-duty pay of enlisted men on extra duty 
at constant labor of not less than 10 days would "be paid at the rate 
of 50 cents per day for mechanics, artisans, school-teachers and clerks, 
at Army, division, and department headquarters, and 35 cents per 
day for other clerks, teamsters, laborers and other enlisted men on 
extra duty." Held, that this would authorize the payment of extra 
duty pay to enlisted men detailed as clerks at post and regimental 
headquarters whenever there is money available for such payment; 
but remarked that the current Army appropriation act contained no 
appropriation from which the payment could be made.^ C. 3762, 
Jan., 1898. 

I C' 6 b (2). Held, that an ai-senal was a 'post within the meaning of 
section 1231, R. S., relating to the establishing of schools at posts, 
etc., and that an enlisted man detailed as a school-teacher at an 
arsenal was therefore entitled to the extra-duty pay specified in the 
act of March 3, 1885, amending section 1287, R. S., the principle 
being that an enlisted man belonging to a particular staff department 
is not entitled to extra-duty pay for services rendered in that depart- 
ment. R. 55, 30, Sept., 1886. 

I C 6 b (3). The principle governing the allowance of extra-duty 
pay to enlisted men belonging to the several staff departments is, 
that such enlisted man is not entitled to extra-duty pay for the per- 

»SeeXIVComp. Dec, 367. 

^ This view was concurred in by the Second Comptroller of the Treasury in a 
decision published in Circ. No. 3, A. G. O., 1894, overruling prior decision of May 22, 
1893. 

3 See Brady v. U. S., No. 30458, Ct. Cls., Feb. 12, 1912, in which it was held th&t a 
soldier on special duty as company clerk was not entitled to extra-duty pay for that 
service. Tnis decision will appear in 47 Ct. Cls. 



856 PAY AND ALLOWANCES I C 6 b (4). 

formance of duty pertaining to the department to which he belongs; 
if, however, he renders service in another staff department, having 
no relation to the duties required of him in his own department, he 
may properly receive extra-duty pay. C. 25352, July 31, 1909. 

I C 6 b (4). The Army regulation providing for the payment from 
the company fund of the extra compensation of 25 cents per day to 
enlisted men who are cooks has reference to ordinary enlisted men 
and does not apply to persons enlisted under the act of July 7, 1898, 
as cooks with the rank and pay of corporals.* C. If.162, Aug., 1898. 

I C 6 b (5). Where enlisted men were paid for extra duty as mes- 
sengers in operation of post laundry at Columbus Barracks, Ohio, 
from the receipts for laundry work, held that, as the act providing for 
laundry plant ^ required that the entire cost of operation shall be paid 
from receipts of laundry work before any surplus is deposited to the 
credit of appropriation, the extra-dutv pay was properly paid from 
such receipts.3 C. 28968, Sept. 13, 1911. 

I C 6 c. War between the United States and Spain as declared by 
act of Congress approved April 22, 1898, existed when the act of 
April 26, 1898, was passed. Held, therefore, that enlisted men in all 
departments of the Army ceased to be entitled to extra-duty pay 
upon the date of the approval of the last-named act. C. 4089, 4135, 
4143, 4144, May, 1898; 4256, June, 1898. 

I C 6 c (1). Section 6 of the act of April 26, 1898, "For the better 
organization of the line of the Army," in providing that in war time 
no additional increased compensation (i. e., additional to the twenty 
per centum increase) shall be allowed to soldiers performing what is 
known as extra or special duty, applies to increased compensation 
made directly from appropriations for the support of the Army and 
not to payments made from the company, bakery, or post exchange 
funds. C. 4414, 4539, 4540, 5442, June to Dec, 1898; 5661, Jan., 
1899; 20121, July 25, 1906; 20152, July 31, 1906. 

I C 6 d. Where appropriations are made for work other than that 
covered by the items for extra-duty pay, enlisted men may, under 
proper restrictions, be employed on extra duty thereon and paid extra 
compensation from such appropriation, even though the appropria- 
tion itself does not specify payments for extra-duty services. In 
such a case the proper authority may select means of accomplishing 
the work authorized by the appropriation and compensate enlisted 
men for extra duty thereon instead of doing it wholly by civilian 
labor. C. 15827, Feb. 2, 1904. So, tield that extra-duty pay might 
be paid to printers at posts out of the appropriation for printing. 
C. 15827, Feb. 2, 1904, and Oct. 21, 1904. So, enlisted men might 
receive extra-duty pay in connection with the construction of a 
target range from the money set aside for the construction of such 
ranges." 0. 19038, Jan. 11, 1906. 

I C 7 a. Where a soldier deposited $50, under the act of May 15, 
1872, presumably in anticipation of his application for purchase of 
discharge, and subsequently while such application was pendmg 

* The pay of cooks enlisted since the act of Mar. 2, 1899, is that of sergeants of 
Infantry. 

^ Act of Mar. 23, 1910 (36 Stat. 253). 

^ See manuscript decision of Comptroller of the Treasm-y of Nov. 20, 1911, sustain- 
ing above views and reversing the Auditor for War Department. 

* See "Appropriations" XXII. 



PAY AND ALLOWANCES IC7a(l). 857 

deserted, held that said deposit was necessarily unconditional and 
like any other deposit was forfeited by desertion. C. 807, Jan., 1895; 
14901, July 6 and Aug. 24, 1903; 17311, Jan. 4, 1905. 

I C 7 a (1). Held that there was no legal authority for the refund- 
ing, by the military authorities, of money paid to purchase a discharge 
under the act of June 16, 1890. This clearly appears from the terms 
of the act which provides that the money when paid "shall be 
deposited in the Treasury" to the credit of the appropriation for 
pay of the Army, to be "available for the payment of expenses 
mcurred during the fiscal year in which the discharge is made." 
The act moreover authorizes the President to permit such purchases 
"under such rules and upon such conditions as he shall prescribe," 
and nothing is found in the rules actually prescribed (G. O. 81, 108, 
of 1890; G. O. 90 June 30, 1911, which contemplates or refers to the 
refunding of such purchase money. P. 65, 71, May, 1894; C- 14^01, 
July 6, Aug. 24, 1903. 

I C 8 a. Held that both allotments and discontinuances of allot- 
ments by soldiers are voluntary and entirely within the discretion of 
the soldier making them. C. II403, Nov. 9, 1901. 

II A 1 a. The act of March 2, 1907, creates an allowance in Tcind, 
as distinguished from one which can be commuted in money, in 
accordance with a rate or measure of commutation, which is pre- 
scribed by law, as in the case of commutation of quarters or rations, 
or the reimbursement by means of mileage of the cost of travel per- 
formed in the public service. C. 19126, Mar. 6, 1907. Held that 
heat and light can not be furnished at any other place or to any 
other building than that occupied by the officer or enlisted man at 
his post of duty. C. 19126, Jan. 21, 1909, Dec. 16,1911. 

II A 1 b. The act of March 2, 1907 (34 Stat. 1167), is nositive m 
its requirements, and charges the War Department with the duty of 
providing heat and light for the quarters lawfully occupied by com- 
missioned officers and enlisted men. It matters not whether the 
quarters belong to the United States, or are procured by the Quarter- 
master's Department in the operation of leases, or are occupied by 
commissioned officers who are in receipt of the statutory allowance 
of commutation. The law simply provides that, as to all the buildings 
or parts of buildings so occupied by officers or enlisted men, it is the 
duty of the Quartermaster's Department to furnish the necessary 
heat and light. 

The statute is sUent as to the method in which such heat and 
light shall be provided, and it places no limitation on its cost. 
Finally, the details of execution are committed to the discretion of 
the Secretary of War by the express requirement that the heat and 
light shall be furnished under such regulations as the Secretary of 
War may prescribe. C. 19126, Aug. 27, 1908. ^ 

II A 1 c (1). The right to quarters accrues in behalf of an officer 
in the operation of an order from competent authority assigning him 
to a particular post or place for duty. The duty of heating and 
lighting is charged to the Quartermaster's Department onl^y^ where 
an officer, at the station to which he has been regularly assigned to 
duty, has been provided with quarters in kind, or, there being no 
such quarters available, has been allowed commutation. C. 22467, 
Dec. 9, 1907. 



858 PAY AND ALLOWANCES II A 1 C (2). 

II A 1 c (2). The furnishing of heat and light is in the nature of 
an allowance in kind, and is not an allowance payable to an ofhcer 
in money, as is the case with commutation of quarters, mileage, per 
diems, etc. In other words, the Quartermaster's Department is 
charged by law with the duty of furnishing heat and light, such duty 
becoming operative when quarters are occupied by persons entitled 
thereto hj law or regulations, and payments when due are not made 
to the ofhcer who occupies quarters or obtains them in the operation 
of commutation, but to persons who furnish heat, light, fuel, or 
illuminants. C. 19126, May 9 and June 4, 1910. 

II A 1 c (3) . An ofhcer in receipt of commutation of quarters was 
ordered to Hot Springs, Ark., for treatment; held not to change the 
status of the officer, who continues to be entitled to heat and light 
at his permanent station. C. 19126, Apr. 18, 1907. 

II A 1 c (4) . Held, that heat and light could lawfully be furnished 
for such rooms only as the Chief and Assistant Chiefs of Philippine 
Constabulary are entitled to by virtue of their actual rank; any 
additional allowance must come from the Philippine Government. 
C. 19126, June 26, 1907. 

II A 1 c (5). An officer of the grade of major, who was in occupa- 
tion of commuted quarters, was promoted to the grade of lieutenant 
colonel on April 2, 1910, his commission bearing date of April 14, 
1910; Tield that he was entitled to pay and commutation of quarters 
from the same date. He would also appear to be entitled to occupy 
the number of rooms appropriate to his new grade from the same 
date; that is, from the date of the vacancy; in other words, if he 
was entitled to one additional room from and after April 2, 1910, 
the Quartermaster's Department, upon due notification, would have 
become charged with the duty of furnishing heat and light for the 
additional room from the date of the vacancy. C. 19126, May 9, 
1910. If the additional room was actually used by the officer from 
and after the date of his promotion, lieM that he would seem to be 
entitled to heat and light therefor during such time, subsequent to 
his promotion, as the room has been occupied by him as quarters. 
C. 19126, June 4, 1910. Held also that rights to heat and light allow- 
ance begin to accrue at the same time that rights to pay begin to 
accrue. C. 19126, Apr. 1, 1911. 

II A 1 c (6) . Where an officer received a leave of absence, retaining 
his quarters during the period of such leave, held that the quarters 
were standing in his name and that he was, theoretically at least, 
occupying them, so that the fact that he was on leave was not mate- 
rial, the officer's occupation being such that no junior could take the 
quarters from him, as he could vacant quarters, and his occupation 
being also such that he could not occupy other quarters or draw 
commutation of quarters while contmuing to hold them. In other 
words, his holding exhausted his rights to quarters. The occupation 
of quarters whUe on leave is something real, not a fiction merely, and 
an officer if holding quarters or drawing commutation of quarters 
is entitled to his allowance of heat and light while on leave of absence. 
a 19126, Sept. 4, 1909, and Feb. 4, 1911. 

II A 1 d (1). Under the law it is the duty of the Quartermaster's 
Department to see that rooms furnished to enlisted men in the opera- 
tion of the law and regulations are heated and lighted. If the local 
practice in renting is to include heat and light, or if the lease or the 



PAY AND ALLOWANCES TI A 1 d (2). 859 

rates paid call for it, the requirements of the statute are satisfied; 
otherwise heat and hght should be stipulated for in the lease In order 
that proper execution may be given to the statute (act of Mar. 2, 
1907), which requires heat and light to be furnished at the cost of 
the United States. C. 19126, Aug. 27, 1908. 

II A 1 d (2). The Quartermaster General is charged by law with 
furnishmg heat and light to quarters furnished to officers and enlisted 
men, and it is the opinion of this office that the right of the enlisted 
men is not defeated and the duty of the Quartermaster's Department 
is not diminished by the fact that commutation of rations is paid to 
the soldier by the Subsistence Department. This view is strength- 
ened by the fact that the lease of the quarters in question does not 
stipulate that heat and light are to be furnished by the landlord, 
leaving it a duty with the Quartermaster's Department to furnish 
heat and light in conformity to the requirements of the statute. 

If the existing requirements and regulations on the subject are 
obscure or lacking in clearness, it is suggested that they be amended 
so as to remove the doubts of the rights of enlisted men serving in 
places where public quarters are not furnished by the United States, 
a 19126, Jan. 11, 1909. 

II A 1 d (3). An enlisted man living outside the military reserva- 
tion on which he is serving as a soldier is not entitled, as of right, to 
heat and light. C. 19126, Dec. 28, 1909. 

II A 1 e. In view of the provisions of successive appropriation acts 
impliedly restricting the selling by the United States of material for 
fuel and light, to sales to "officers," and of the previous practice to 
that effect, held that such sales should not be permitted to be made 
to other classes of persons until Congress shall have so authorized. 
P. 58, 470, Apr., 1893. 

II A 2 a (2) (a). An officer was ordered from Fort Custer to Wash- 
ington, D. C, to await retirement, but w^as not m fact retired till at 
the end of about five months after his arrival at Washington. Held 
that he was entitled to the regulation allowance for the transporta- 
tion of his horses from Fort Custer, on the ground that he was chang- 
ing station. Washington became on his anwal, and continued to 
be durmg the five months mentioned, his proper station, where he 
was entitled to receive the other allowances accruing to an officer 
at his station — commutation of quarters, forage, medical attendance, 
the right to purchase commissary stores and fuel, etc. P. 60, 22, 
June, 1893. 

II A 2 a (2) (a) [1]. A Cavalry lieutenant, ordered from Washington 
to report to the superintendent of the Military Academy for duty at 
the academy, held entitled to be remibursed the amount paid by him 
for the transportation of his horse to West Point, such amount 
being reasonable and within the regulation limit. An assignment 
to duty at tlie academy is not a "coUege detail." P. 59, 7, Apr., 1893. 

II A 2 a (2) (&). The act of March 23, 1910 (36 Stat. 255), provides 
that: "Hereafter transportation may be furnished for the owned 
horses of an officer not exceeding the number authorized by law 
from point of purchase to his station, when he would have been 
entitled to and did not have his authorized number of owned horses 
shipped from his last change of station, and when the cost of ship- 
ment does not exceed that from his old to his new station." Para- 



860 PAY AND ALLOWANCES II A 2 b (l). 

graph 1114 Army Kegulations of 1910 reads in part as follows: 
4. When horses are purchased by officers at pomts other than their 
station the Quartermaster's Department will transport them from 
points of purchase to the station of the officer, provided the cost of 
shipment from point of purchase to new station does not exceed the 
cost of shipment from the old to new station on last change of sta- 
tion, and provided the officer has not had his authorized private 
mounts shipped from his old to his new station." Held that a mount 
purchased at Fort Reno, Okla., by an officer of the Army, may 
not legally be shipped to him at San Francisco, CaL, wholly at the 
expense of the Government, for the reason that the cost of shipment 
from Fort Reno to San Francisco would exceed the cost of shipment 
from San Diego, CaL, the officer's last preceding station, to San 
Francisco, his present station (Aug. 5, 1911). U. 24000, Aug. 5, 
1911. 

II A 2 b (1). An officer of the Army, acting as Indian agent, occu- 
pied as his quarters, without rent, a house at the agency, placed at 
his disposal for the purpose by the Interior Department. Held that 
he was not entitled to commutation of quarters. Moreover the appro- 
priation in the Army appropriation act for commutation of quarters 
IS for ' ' officers on duty," etc. Further lield therefore that this duty " 
meant military duty, and did not include duty as an Indian agent 
under the act of June 13, 1893, which, in authorizing the detail of 
officers of the army as Indian agents, detaches them from military 
service and duty for the time being, and places them ' ' under the 
orders and direction of the Secretary of the Interior."^ P. 64, 121, 
Mar., 1894, C. 12939,^ July 25, 1902; 14574, Jan. 8, 1910. 

II A 2 b (2). It is within the power of the Secretary of War to assign 
an officer to any military duty and to give him a station at any place 
within or without the United States where the duty to which he has 
been assigned can most conveniently be performed. Held that to 
meet the case of an officer who was on the duty of mapping the coun- 
try, it is only necessary to assign the officer to duty at a place con- 
venient to his work. And held further that as there are no public 
quarters at such place, he becomes entitled to commutation. It may 
be necessary to accompany this action by a grant of authority, when 
an officer is married, to permit his family to continue in occupation 
of quarters during the absence of the officer so assigned. But this is a 

1 See the case of U. S. v. Dempsey, decided Sept. 28, 1900, by the U. S. Giro. Court, 
D. Montana (104 Fed. Rep., 197), in which the court held — 

1. That under par. 1480, Army Regulations (1322 of 1910) which provides that 
"officers on duty, without troops, at stations where there are no public quarters, are 
entitled to commutation therefor," any suitable quarters provided by the Govern- 
ment for the use of an officer answer the requirement for "public quarters," though 
not expressly built for Army officers; and an officer assigned to duty as an Indian agent, 
and furnished a suitable building on the reservation for his quarters, without charge, 
is not entitled to receive commutation for quarters. 

2. That where an Army paymaster has paid an officer a sum as a commutation 
allowance through an error of law, the United States is not bound by such payment, 
and may recover the money so paid in a proper action, with interest from the date 
when the officer's accounts were settled by the Treasury Department, at the rate 
established by the laws of the State in which the action is brought, citing in support 
of the latter, McElrath v. U. S., 102 U. S., 441; Wisconsin Central R. Co. v. U. S., 164 
id., 190. 



PAY AND ALLOWANCES II A 2 b (s). 861 

matter falling entirely within the discretion of the Secretary of War.^ 
C. 17407, Jan. 18, 1905. 

II A 2 b (3). If an officer not in the field is on a duty that requires 
him to travel, and finds it necessary to make frequent stops varying 
in length from a few days to a few weeks, he is entitled during 
such stops to either quarters in kind or commutation of quarters. 
C. 18963, Sept. 30, 1904. 

II A 2 c (1). Held that the regulation allowance for the expenses of 
the interment of an officer was not payable in a case of an officer who 
at the time of his death was on sick leave, this not being one of the 
cases specified in the Army appropriation acts (see acts of June 30, 
1892, and Feb. 27, 1893), in which such allowance is authorized to be 
paid. P. 60, 47, June, 1893. Similarly held in a case of an officer 
who died at Hot Springs, Arkansas, when not on duty but on leave 
of absence.2 P. 47, 253, May, 1891; C. 6126, Mar. 27, 1899; 13598, 
Nov. 11,1902. 

II A 2 c (2). Held that the fact that an officer had been interred at 
the post where he died did not preclude the Secretary of War from 
authorizing his permanent interment elsewhere, provided the entire 
expenses of burial did not exceed the maximum amount of $75 
allowed for such purposes by the Army Regulations. But held 
further that, under the provision on the subject of the Army appro- 
priation act of February 27, 1893,^ such expenses could not be allowed 
for the interment of an officer dying at a military post unless he was on 
duty there at the time of his death, and therefore could not legally 
be allowed in the case of an officer who died at a post where he 
was staying while on sick leave of absence from his station in another 
military department. P. 65, 183, June, 1894; O. 13598, Nov. 11, 
1902. 

II A 2 d (1). The acts of June 18, 1878 (20 Stat. 150), and Febru- 
ary 24, 1881 (21 Stat. 347), still regulate the issue of forage to officers, 
who become entitled to the allowance ''only for horses owned and 
actually kept * * * in the performance of their official military 
duties. Held that a subaltern officer who owns one horse may draw 
forage for one. If he owns two he may draw forage for two, pro- 
vided the conditions above cited in respect to ownership and use are 
compHed with. C. 24000, Oct. 23, 1908. 

II A 2 d (1) (a). Held, that the act of March 2, 1907 (34 Stat. 1166), 
was never intended to inipair the efficiency of the acts of June 18, 
1878 (20 Stat. 150), and February 24, 1881 (21 Stat. 347), in which 
the forage allowance of mounted officers is regulated and provided 
for. fZ^eM, also, that the act of May 11, 1908 (35 Stat. 108), made 
no change in respect to issues of forage for mounts which are owned 
by commissioned officers, but left their forage supply to be governed 
by the acts of 1878 and 1881. The public animals issued to officers 
for their official use in the operation of the act of May 11, 1908, con- 
tinue to be foraged and cared for by the United States, as they 
always have been ; and no change has been made in the long-estab- 
lished arrangements for the foraging of horses owned and actually 

» See IX Comp. Dec, 379; Pay Manual, 126, 1910 ed. 

^ The transportation of the remains of deceased officers and enlLsted men is now 
regulated by the requirements of the act of Mar. 3, 1909 (35 Stat. 743). 
^ See act of Mar. 3, 1909 (35 Stat. 743). 



862 PAY AND ALLOWANCES II A 2 d (l) (6). ^ 

kept by the commissioned officers in the performance of their official 
military duties. C. 23277, Feb. 16, 1909. 

IIA2 d (1) (&). Held, that the duty upon which a retired officer 
is placed when he is detailed as professor at an educational institution 
is not one which requires him to be mounted. He therefore is not 
entitled to a forage allowance, as forage for private horses is not a 
part of the allowances to which an officer is entitled, irrespective of 
the duty on which he is engaged. C. 23967, Oct. 28, 1911. 

II A2 d (2). A contract surgeon, who was not entitled to forage, 
purchased horses that were practically unbroken and untrained, and 
either personally or through his employees trained them as driving 
horses. He accomplished the feeding of his horses by entering into 
an arrangement with officers who were by law entitled to forage 
under which arrangement he claimed that he had sold the horses 
to such officers and submitted as evidence the statement that a bill 
of sale had passed with a consideration of $1.00. Several officers 
became parties to this transaction, and forage was drawn against 
their allowance for the feed and bedding of these horses. He later 
sold these horses to other parties for considerations commensurate 
with their values. The law allows forage to mounted officers for 
horses "owned and actually kept" by such officers '*in the perfor- 
mance of their official military duties." (Sec. 8, act of June 18, 
1878, 20 Stat. 150; act of Feb. 24, 1881, 21 Stat. 347.) None of the 
horses in this case could have been used as suitable mounts in the 

Serformance of the official military duties of their putative owners, 
'one of them were ''kept" and cared for by any of the officers. 
They were kept and trained by the contract surgeon and his em- 
ployees, but were foraged by the Quartermaster's Department. Held 
that these horses were not "owned and actually kept" by the 
mounted officers against whose forage allowance the horses were 
subsisted "in the performance of their official military duties."^ 
C. 23277, Feb. 16, 1909. 

II A3 a (1). Where a soldier was sentenced to dishonorable dis- 
charge "forfeiting all pay due or to become due," held that his right 
to clothing allowance, if there was any due him at date of discharge, 
was wholly unaffected by the sentence; "allowances" being distinct 
from "pay." R. 49, 526, Dec, 1885. 

II A 3 a (2). Pay and allowances are given to a soldier because he 
earns them or is, without fault on his part and by circumstances not 
within his control, prevented from doing so; and when pay is with- 
held from him for the reason that he (by his own fault) failed to earn 
it, his clothing allowance should be withheld for the same reason. 
Thus Tield that a soldier absent without leave by his own fault, or in 
the hands of the civil authorities serving sentence of a civil court, 
should not be allowed either pay or clothing allowance for the period 
of such unauthorized absence from duty. C. 12025, Feb. 6, 1902; 
2010, Feb., 1896; 14642, May 22, 1903; 17518, Feb. 13, 1905; 16966, 
July 17, 1905. 

1 See G. O. 206, War Department, Washington, Dec. 17, 1908, which published the 
finding and opinion of a court of inquiry on this case. See also G. O. 202, War Depart- 
ment, Washington, Dec. 12, 1908, which promulgated the sentences awarded by the 
ensuing courts-martial in this case. 



PAY AND ALLOWANCES II A 3 a (s) (a). 863 

II A 3 a (3) (a). A soldier was sentenced "to be confined at hard 
labor with forfeiture of all pay and allowances for six months" and 
while serving such sentence he drew clothing to the value of about 
thirty dollars which amount was charged against his clothing allow- 
ance accruing prior and subsequently to the period of confinement. 
Held that he forfeited his clothing allowance during the period of con- 
finement under the terms of the sentence, and that it was proper to 
charge the same against him as stated. This is understood to accord 
with the practice in such cases. C. 1525, July, 1895. 

II A 3 a (4) (a). Held to be manifest from the provisions of sec- 
tions 1242, 1296, 1303 and 5438, R. S., and the seventeenth article of 
war, that the clothing issued to soldiers for their use in the military 
service continues to be the property of the United States ^ — the prac- 
tice of charging them with the money value on issue being required 
by statute merely for convenience in accounting and to incite economy 
in the use and care of the clothuig. R. 45, 552, Jan. 20, 1883; P. 51, 
159, Dec. 30, 1891; C. 11251, May 12, 1910; 16107, Sept. 20, 1911; 
21179, Dec. 23, 1911. 

II A 3 a (4) (6). When a soldier is discharged without honor 
because of fraudulent enlistment lieM that he should not be permitted 
to take clothing with him which has been drawn in excess of his allow- 
ance. C. 2113, Mar. 9, 1896; 7782, Mar. 6, 1900; 11251, Sept. 24, 
1901; 16048, Mar. 19, 1904. 

II A 3 a (4) (c). Held that upon the return of a deserter to military 
control he can not claim as private property articles of uniform cloth- 
ing which had been issued to him before his desertion and which he 
left behind at desertion. C. 3251, June 2, 1899; 21179, Mar. 7, 
1907; 29407, Jan. 30, 1912. 

II A 3 a (4) (d) [1] [a]. Under section 1302, R. S., "the money 
value of all clothing overdrawn by the soldier beyond his allowance 
shall be charged against him," and section 1298 provides for gratui- 
tous issues to replace clothing destroyed to prevent contagion, but 
there is no other statutory authority for gratuitous issues to enlisted 
men. Under section 1296 the "President may prescribe the uniform 
of the Army and quantity and kind of clothing which shall be issued 
annually to the troops of the United States" ; and under this authority 
tables are issued showing the price of clothing, the allowance in kind 

* The opinion of May 12, 1910, was approved by the Secretary of War, and published 
in Circular 36, War Dept., June 6, 1910. The views above expressed are in accordance 
with the decisions of the civil courts, where prosecutions have been had under sec. 
5438, R. S., and its reenactment in sec. 35 of the Criminal Code, of persons purchasing 
uniform clothing from soldiers. SeeU. S. v. Hart, 146 Fed. Rep., 202; U. S. v. Koplik, 
155 id., 920; U. S. v. Smith, 156, id., 859; Lobosco v. U. S., 183, Fed. Rep., 742; 
Ontai V. U. S., 188 Fed. Rep., 310. In Lobosco v. IT. S., supra, in affirming the con- 
viction, it was said that the uniform clothing "being regarded as public property, 
whether remaining in a public depot, or in the possession of the individual soldier, 
and this notwithstanding the soldier is allowed to retain such articles of clothing as he 
has then in use on the expiration of his term of service. " In Ontai i;. U. S., in affirm- 
ing the conviction, it was said ' 'clothing furnished to a soldier by the United States 
under a clothing allowance does not become his private property which he has a right 
to dispose of while in the service, but is public property within sec. 35 of the Penal 
Code (act of Mar. 4, 1909, c. 321; 35 Stat. 1095)." Sec. 35 of the Criminal Code is a 
reenactment of sec. 5438 of the Revised Statutes, with the addition of the words 
* 'whether furnished to the soldier, sailor, officer, or person, under a clothing allowance, 
or otherwise;" thus making it clear that the clothing issued to a soldier is public 
property. 



864 PAY AND ALLOWANCES II A 3 a (4) {d) [l] [b]. 

to each soldier for each year of his enhst merit, thus giving the money 
value of his clothing allowances, and these are changed from time 
to time in orders. Army Regulations provide for gratuitous issues 
of certain articles to troops serving in extremely cold climates, such 
articles to be charged to the soldier only in case of loss or damage 
other than from fair wear and tear ; and these regulations while 
purporting to provide for gratuitous issues may be treated as pre- 
scribing an increase of the allowance under the conditions named in 
the regulations. Where, therefore, the department commander 
directed a gratuitous issue of one suit of khaki uniform, one cam- 
paign hat, one pair of leggings and one pair of shoes to each enlisted 
man who was engaged in the campaign which ended with the attack 
upon and fall of Manila, P. I., on August 13, 1898, presumably to 
replace articles lost or damaged under the extraordinary conditions 
of the campaign, the issues to be made upon properly approved 
requisitions, etc., it was held that there was no legal objection to a 
regulation providing for an increase in the clothing allowance to 
replace articles thereof which have been practically destroyed in carry- 
ing on a campaign under the conditions of the campaign in question, 
and that the regulation could be made retroactive to cover issues 
already made with respect to such conditions. C 5862, Feb., 1899. 

II A 3 a (4) {d) [1] [6]. Circular 57, A. G. O., 1898, provides that 
''whenever articles of clothing of enlisted men have been destroyed 
to prevent contagion a gratuitous issue of such articles of clothing will 
be made to the enlisted men to whom such clothing belonged upon 
the certificate of the officer who has personal knowledge of the facts." * 
Held that there was no provision for paying for the clothing destroyed, 
in lieu of the gratuitous issue authorized. C. 5588, Jan., 1899; 
20143, Aug. 3 and 16, 1906. 

II A 3 a (4) {d) [1] [c]. A soldier is not entitled to be credited in his 
clothing account with the value of clothing lost by fire or other 
casualty. This can be made good to him only through the reimburse- 
ment authorized by the act of March 3, 1885 (23 Stat. 350). P. 63, 
278, Jan., 1894; C. 10025, Mar. 22, 1901; 20143, Aug. 2, 16, and Sept. 
21, 1906, and Oct. 13, 1910. 

II A3 a (4) (e) [1]. Held that the provision in an Army appropriation 
act "for a suit of citizen's outer clothing * * * to be issued upon 
release from confinement to each prisoner who has been confined under 
a court-martial sentence involving dishonorable discharge," did not 
apply where the sentence of the court adjudged dishonorable dis- 
charge without any term of confinement.^ C. 2925, Feh. 9, 1897, and 
Jan. 5, 1912; 14256, Mar. 12, 1903. 

II A 3 b (1) (a). Authority to establish the rates of the allowance 
for commutation of rations has not been given by statute, but 
these rates have been left to be fixed by Army regulation. But 
these amounts are recognized and sanctioned in the provisions of the 
Army appropriation acts relating to the Subsistence Department. 
P. 49, 441, Oct., 1891. 

II A 3 b (1) (6) [1]. The allowance for commutation of rations, 
made payable, by the Army appropriation act of February 27, 1893, 
"to enlisted men traveling on detached duty, when it is impracticable 

1 See sec. 1298, R. S., and par. 1188, A. R., 1910 ed. 

2 See par. 4, circ. 4, A. G. 0., 1897. 



PAY AND ALLOWANCES III A 1. 865 

to carry rations," etc., held to be restricted to the period covered by 
the travel, and not to be payable to a soldier for commutation of 
rations consumed at the destination where he was placed by his 
orders on detached duty, viz, for four days board at a hotel at the 
terminus of his travel. P. 59, 38, Apr., 1893. 

Ill A 1 . A dismissal of an officer by order of the President does 
not involve a deprivation of any part of the pay due him, and if the 
order is so expressed as to dismiss him "without pay or allowances," 
or in terms to that effect, it is, as to this portion, unauthorized and 
inoperative. R. 10, 216, Aug., 1864; 4^, 73, Dec, 1878, and 470, Jan., 
1880. So where a legal muster into service of a volunteer officer was 
revoked by order, after an interval of service rendered, with the effect 
(given to the order) of depriving him of pav for such service, held that 
the so-called revocation was unauthorized and inoperative. A legal 
executive act can not be thus nullified to the prejudice of a vested 
right. R. 42, 470, Jan. 19, 1880. 

Ill Ala. The Executive, in summarily dismissing an officer in 
time of war, can not at the same time deprive him of pay due. Nor 
can the right of an officer to his pay for any period prior to a sum- 
mary dismissal ordered in his case be divested by a dating back of 
the order of dismissal. Such an order can not be made to relate 
back so as to affect the status or rights of the officer as they existed 
before the date of the taking effect of the dismissal. R. 6, 379, 405, 
Sept. and Oct., 1864; 10, 1, 4, July, 1864; 17, 670, May, 1866; 31, 
125, Jan., 1871; 35, 112, Jan., 1874; 4^, 73, Dec, 1878, and 470, July, 
1880; a 16823, Sept. 13, 1904. 

Ill A 2 a. Where a sentence suspended an officer "from the 
service for the term of six months," held, m view of the general prin- 
ciple that pay may not be forfeited by implication, that such sentence 
could not properly be construed as intending a forfeiture of pay, but 
should be regarded as imposmg a suspension from rank, promotion, 
and command only; that a larger meaning should not be ascribed 
to its language merely because it was expressed in general terms.^ 
R. 23, 427, Apr., 1867. 

IIIB2. Section 1766, R. S., which prescribes that "no money 
shall be paid to any person for his compensation who is in arrears to 
the United States, until he has accoimted for and paid into the 
Treasury all sums for which he may be liable," has not in practice 
been so strictly construed as to preclude the making of stoppages 
against the pay of officers and enlisted men in such monthly amounts 
as to leave a margin for necessary living expenses. Thus where the 
stoppage against an enlisted man was SI 00, advised that it be col- 
lected at the rate of $10 per month. C. 7415, Dec, 1899; 3292, 
Dec. 18, 1897. 

Ill B 3. A civilian, then at Pittsfield, Mass., was duly employed, 
by the engineer officer in charge of a river improvement, as an 
assistant at a compensation of $150 per month, and ordered to 

' The forms, "to be suspended from service" and "from duty, " are rarely employed 
in the military serA-ice. The form, "to be suspended from rank and duty," occurs, 
however, in G. C. M. O. 19, A. G. O. of 1885. Suspension /rom duty, as distinguished 
from suspension from rank, is a recognized punishment in the naval service. Har- 
wood, 134 and 135. 

93673°— 17 55 



866 PAY AND ALLOWANCES III B 4. 

report at Montgomery, Ala. In subsequently settling with him for 
his services the officer allowed and paid him, in addition to his salary, 
the amount of his expenses of travel between Massachusetts and 
Alabama. Held, that such allowance was unauthorized as being in 
excess of the contract, which stipulated only for the payment of the 
salary named, and was therefore legally stopped by the accounting 
officers against the engineer officer's pay.^ P. ^3, 182, Oct., 1890. 

Ill B 4. Pay due an officer or soldier can not legally be stopped 
to reimburse a telegraph company for moneys received by a sergeant 
of the then Signal Corps for transmitting private messages over its 
line, the same not being a line ''operated by the United States," in 
the sense of the act of March 3, 1883, c. 143, and the indebtedness of 
the sergeant being to the telegraph company only, not to the United 
States. P. 61, 186, Aua., 1893; C. 20083, July 30, 1906. An officer 
or soldier can not legally be mulcted of any part of his pay for the 
satisfaction of a private claim. P. 33, 171, June, 1889; C. 5Ji.Ji.6, 
Dec, 1898; 8356, June, 1900; 11383, Oct. 16, 1901. ^ 

III B 5. A stoppage differs from a fine or forfeiture, in that the 
latter is imposed as punishment for an offense, while the former is a 
means of reimbursement or a "charge on account" to make good a 
loss. A stoppage can not therefore, in the absence of a statute or 
regulation authorizing it, legally be imposed as a punishment for an 
offense. P. 36, 87, Oct., 1889. But it is entirely legal to stop against 
a soldier's pay, under the Army Regulations, an amount required to 
reimburse the United States for loss on account of damage done to 
ublic property, while at the same time bringing the soldier to trial 
y court-martial for the offense involved. P. 62, 481, Dec, 1893; 0. 
18116, June 7, 1906. 

Ill B 6. The United States is not authorized to stop against the 
pay of an officer or soldier an amount of personal indebtedness to 
another officer or soldier, though such indebtedness may have grown 
out of the relations of the military service. Thus, in the absence of a 
sentence of court-martial forfeiting the same, an officer's pay can not 
legally be stopped with a view to the reimbursement of enlisted men 
who have deposited with him money for safe-keeping, which he has 
failed to return when required, the officer being accountable for the 
same in a personal capacity only. R. 12, 610, Aug., 1866; 16, 637, 
Oct., 1866; G. 11383, Oct. 16, 1901; 20083, July 30, 1906; 26836, July 
21, 1910. _ 

1 It was held by the Com-t of Claims in Billings v. U. S., 23 Ct. Cls., 166, that Sec. 
191, Revised Statutes, which declares that the balances stated by the accounting 
officers "shall be conclusive upon the Executive branch of the Government" did not con- 
clude the Secretary of War in the exercise of his legal discretion as to orders issued 
to his subordinates; that under that section the decision of the accounting officers was 
conclusive as to the "balances" stated by the accounting officers and their "decision 
thereon" for the purpose of determining for what amounts, if any, warrants may be 
drawn on the Treasury; but that when the accounting officers report an officer 
indebted to the United States, it is a matter wholly within the discretion of the Sec- 
retary of War, under Sec. 1766, Revised Statutes, and the Army Regulations "whether 
to order a stoppage of pay or not." See, also, McKee v. U. S., 12 Ct. Cls., 604; 
Longwill V. U. S., 17 id., 291; Hartson v. U. S., 21 id., 453; 5 Op. Atty. Gen., 386. 
The accounting officers of the Treasury have not the burden cast upon them of revis- 
ing the action, correcting the supposed mistakes, or annulling the orders of the heads 
of departments. U. S. v. Jones, 18 Howard, 96; U. S. v. Hahn, 107 U. S., 402; Brown 
V. U.S., 113 id., 568. 



PAY AND ALLOWANCES III B 6 a. 867 

III B 6 a. Where a discharged soldier regularly assigned his final 
statements, which upon presentment for payment were found to call 
for more than was m fact due, held that the difference between the 
amount paid and the amount erroneously called for on the final state- 
ment could be made the subject of a claim against the discharged sol- 
dier, the assignor, but not against the United States. The man having 
reenlisted, it was further ^f/a that a stoppage against his pay to satisfy 
the claim above referred to would be a stoppage to satisfy a private 
claim and therefore not authorized. C. 8355, June, 1900; 13604, 
Nov. 11, 1902. 

Ill B 7. Where certain officers had misappropriated and applied to 
their own use $589.08, company funds, recommended that that 
amount be stopped against their pay. C. 7186, Oct., 1899; 15177 , 
Aug. 31, 1903. 

Ill B 7 a. An officer at the time of his death was accountable for 
$360, company fund. A board of survey reported that he had left in 
lieu of the money an unindorsed Government check for that amount, 
paj^able to his order and purporting to be for pay due him. It thus 
appeared that the officer owed the company fund $360, and that the 
Grovernment owed him the same amount for salary, the check not hav- 
ing been presented and paid. Advised, therefore, that as an officer's 
pay may legally be stopped to reimburse the company fund, $360 be 
stopped against the pay due the deceased officer, and that the check 
referred to be returned to the drawer to be canceled. C. 7957, 
Apr., 1900; 15177, Aug. 31, 1903. 

Ill C 1 a (1) («.). By the third subdivision of Article III of the 
Executive order of March 30, 1898 (G. O. 16, A. G. O., 1898), it is 
provided that in consideration of previous convictions the limit of 
punishment shall be "dishonorable discharge, forfeiture of all pay 
and allowances, and confinement at hard labor for three months." 
Such a sentence means, so far as the forfeiture is concerned, forfeiture 
of pay and allowances due at the date of the discharge. A court- 
martial when it has the power to award this sentence may award a 
lesser one, but in doing so can not award confinement and forfeiture 
greater in amount than confinement for three months and forfeiture 
of pay and allowances due, or its equivalent under the rule of sub- 
stitution authorized in the order.* U. 3694, Apr., 1898; 2381, June, 
1896; 2751, Nov., 1896; 13734, Dec. 2, 1902; 17203, Dec. 20, 1904; 
17352, Jan. 11, 1905. 

Ill C 1 a (1) {a) [1]. Where a soldier was sentenced ''to be dis- 
honorably discharged, forfeiting all pay and allowances, and to be 
confined for three months," and the dishonorable discharge was 
remitted in approving the sentence, Tield that the forfeiture was 
evidently intended to relate to pay due at the date of discharge, 
and that, as the discharge had been remitted, the forfeiture could 
apply only to pay due at the date of the receipt at the post of the 
order publishing the sentence. R. 51, 176, Dec, 1886. 

^ Since the rendition of this opinion, the Executive order referred to has been 
amended by adding thereto the following (G. 0. 88, A. G. O. 1900): "Article IX. If, 
in cases where the limit of punishment is dishonorable discharge, forfeiture of all 

Say and allowances and confinement at hard labor for a stated number of months, 
ishonorable discharge be not adjudged, the limit of forfeiture shall be all pay due 
and to become due during the prescribed limit of confinement." See Art. V of 
Executive order, published in G. O. 204, War Dept., 1908 (Court-Mar. Manual, 1008, 
p. 60), as amended by G. O. 77, War Dept., 1911. 



868 PAY AND ALLOWANCES III C 1 a (l) {a) [2]. 

Ill C la (1) (a) [2]. Where an officer was sentenced to be dismissed 
with forfeiture of pay due, and, subsec(uently to the approval of the 
sentence but before such approval had been promulgated to the 
Army or the officer had been officially notified of the same, he applied 
for and received the pay due him, held that, inasmuch as the forfeiture 
had not taken effect at the time of the payment, no illegal act was 
committed by the officer, and that the paymaster who paid him 
was not properly to be held accountable for the amount paid. R. 10, 
609, Nov., 1864- So where a soldier in confinement awaiting the 
result of his trial by court-martial was, contrary to Army regula- 
tions 945, paid one month's pay, it was held that his title thereto 
became thereupon vested and was unaffected by the sentence of 
forfeiture of all pay and allowances subsequently published in his 
case, a S268, June, 1897; 14787, June 12 1903; 16955, Sejyt. 
29, 1904, 

III C 1 a (2). A sentence expressly forfeiting all pay due a soldier 
applies only to pay due him under his pending contract. It will not 
affect pay which may be due for service rendered under a previous 
enlistment and not yet settled. R. 14, 371, Ayr. 1865; 42, 73, Bee, 
1878. 

Ill C 1 b. The rule prescribed in Army Regulations to the effect that 
confinement and forfeiture, when the sentence is silent as to the time 
of their taking effect, shall be operative from the date of the 'promulga- 
tion of the sentence in orders, is an exception to the general rule that 
orders affecting the status or rights of officers or soldiers shall take 
effect from notice. But where a sentence of dismissal of a cadet of 
the Military Academy was, on October 31, 1893, commuted to sus- 
pension from the academy without pay until August 28, 1894, held, 
that the general rule, in the absence of any specific exception of such a 
case by the Army Regulations, applied, and that the sentence as 
commuted took effect upon and from notice, the forfeiture com- 
mencing to run from date of such notice. P. 64, 280, Apr,, 1894- 

IIIC Ic (1). A sentence to forfeit all pay and allowances due and 
to become due forfeits commutation of quarters, fuel, and rations, the 
same being included in the term " allowances." R. 53, 270, Apr., 1887. 

IIIC 1 d (1). Wliere a sentence of a soldier forfeits "all pay and 
allowances" for a certain period, the necessary clothing may be sup- 
plied. All prisoners in the manual custody of the authorities, civU or 
military, are entitled to subsistence during their detention, and it can 
not be forfeited by sentence. P. 62, 244, Nov., 1893. 

IIIC 1 e (1). Wliere the record of the trial of a deserter was de- 
stroyed by fire before it could be acted upon (and it could not be 
reproduced from existing notes), and the accused was thereupon 
restored to duty, held, that the destruction of the record before the 
reviewing authority had acted on the case, had the legal effect of an 
acquittal and relieved the deserter from the forfeiture of pay due at 
date of desertion. P. 55, 181, Aug., 1892; 65, 338, June, 1894. 

IIIC 1 f (1). In a case of a forfeiture by sentence, of "pay due" 
(or "pay due and to become due"), the amount of pay due and pay- 
able to the party at the date of the approval of the sentence is, in 
contemplation or law, returned from the appropriation for the Army 
to the general treasury and becomes public money, and, being in the 
Treasury, cannot, without a violation of Article I, section 9, para- 
graph 7, of the Constitution, be withdrawn and restored to the party 
except by the authority of Congress. R. 23, 642 and 659, Aug., 1867; 



PAY AND ALLOWANCES III C 1 g (l). 869 

28, 63, Aug., 1868, and 567, May, 1869; 29, 139, July, 1869; C. 11594, 
Nov. 13, 1901; I4O68, Jan. 29, 1903; 15510, Nov. 16, 1903. 

Ill C 1 g (1). Hdd that money accruing from forfeitures due to 
sentences in the cases of soldiers of the Vokmteer Army should be 
left in the Treasury and credited to the pay of the Army. G. 7696, 
Feb. 19, 1900. 

Ill C 2 a. A soldier does not forfeit clothing money due him at 
date of discharge, if discharged without honor, except for fraudulent 
enUstment. C. 2107, Mar., 1896; 18398, Aug. 6, 1905. 

Ill C 2 b. A court-martial is called into existence for the purpose 
of enforcing military discipline and not to determine questions of 
civil liabihty; and its fuidings are not conclusive as to such questions. 
In accordance with this view this office has held that the acquittal 
of a soldier of desertion, including the criminal offense of absence 
without leave, did not prevent the forfeiture of pay and allowances 
accruing during his absence as prescribed by the regulations; i. e., 
that the acquittal was not conclusive as to the civil obligation under 
his contract of enUstment to furnish his personal services in con- 
sideration of his pay. C. 12168, Mar. 6, 1902. 

Ill C 2 c (1). Held that one who had entered the Army by a 
fraudulent enlistment was not entitled, upon his summary discharge 
without honor on the discovery of the fraud, to be paid the travel 
allowance provided by section 1290, R. S. The j^rinciple that the 
party to a contract, against whom a fraud is committed by the other 
party in entering into the contract, may at once rescind the contract, 
the defrauding party thereupon losing all rights and profits under 
it, applies equally to contracts of enlistment, P. 54, 373, July, 1892. 

Ill C 2 c (2). In the case of a soldier discharged without honor 
from the Army because of his punishment by a ci^dl tribunal, held 
(in view of the rulmgs of the comptroller on the point) that the 
soldier maj'" be considered as having been discharged '*W way of 
punishment for an offense" within the meaning of section 1290, 
R. S., and of the act of March 2, 1901, which provides that the 
soldier so discharged shall not receive travel pa}^. 0. 14937, July 15, 
1903; 14642, May 22, 1903. 

Ill C 2 c (3) . Discharges are granted by way of favor, upon the 
application of the soldiers eligible therefor and subject in each case 
to a waiver of travel allowances.^ G. 15176, Sept. 4, 1903. Held that 
this waiver could legally be required; and that the soldier, by apply- 
ing for the discharge, consents to such waiver as a condition upon 
which the discharge will be granted. G. 1862, Dec, 1895. As the 
discharge can be granted only by the President or Secretary of War, 
a department commander has no authority to refuse to forward an 
application therefor. G. 203, Aug., 1894; 9336, Nov. 26, 190Q; 
14002, Jan. 19, 1903; 14937, July 11, 1903. 

Ill C 2 c (4). A soldier sentenced to dishonorable discharge only, 
being discharged by way of punishment for an offense, forfeits his 
travel pay under section 1290, R. S., by operation of law. G. 3608, 
Nov., 1897. 

» See II Comp. Dec, 252; VI id., 326. See par. 8, G. 0. 90, War Department, 
series 1911, which reads: " Discharges by favor, as distinguished from purchase, are 
illegal, and will not be granted except under the conditions set forth in par. 9 of this 
order." Soldiers discharged under par. 9, G. O. 90, 1911, are entitled to travel pay. 
VI Comp. Dec, 686. 



870 PAY AND ALLOWANCES III C 2 d. 

Ill C 2 d. Wliere a revolver was lost by a soldier, and he was 
acquitted by a court-martial, but the findmgs were disapproved; 
Tield, that the cost of the revolver should be charged against his pay. 
C. 221U, Oct 15, 1907. 

Ill D 1 . The ovljjine known to military law is the fine authorized 
to be imposed by way of punishment by sentence of court-martial. 
No military commander is empowered under any circumstances to 
impose a fine upon an officer or a soldier. R. 8, 444, ^O'V, I864. 

Ill D 2. Fines adj.udged by courts-martial accrue to the United 
States, A court-martial can not impose a fine for the benefit of an 
individual, nor can a fine adjudged in general terms be in any part 
appropriated for the benefit of an individual by executive authority. 
R. 7, '52,^ 643, Jan. and May, I864; 8, 632, June, I864. A court- 
martial, in sentencing a party to pay a. fine, has no authority to 
direct the collection of the same by a provost marshal, or by any 
compulsory process: such a direction added in a sentence should be 
disregarded as mere surplusage. R. 8, 2,98, Ayr., 1864- 

III D 3. A fine is distinguished from a "stoppage." The former 
is a punishment and therefore imposable only by court-martial. The 
latter is a charge on account, being an enforced reimbursement, by 
means of a debit entered against the pay of the party on the rolls, 
either for an amount due the United States — as for the value of 
public property lost, extra clothing issued, reward paid for appre- 
hension as a deserter, etc., or for an amount due an individual and 
expressly authorized by law or regulation to be thus charged. R. 35, 
457, July, 1874; P- 38, 88, Jan. 1890. 

Ill El. A sentence forfeiting pay can be remitted only as to pay 
not due and payable at the date of the remission. R. 1,393, Oct., 1862; 
8, 392, 576, June, 1864; ^, 196, May, 1864; 10, 676, Dec, 1864; 35, 
372, May, 1874; 50, 221, Apr., 1886; P. 34, 334, ^ug., 1889. Where 
a soldier's pay has been forfeited by an executed sentence, no mere 
amendment of the muster-roll upon which the same has been noted 
can operate to undo such forfeiture. R. 30, 44, Sept., 1869. If, how- 
ever^ the sentence was in fact illegal and void, the soldier should be 
credited on subsequent rolls with the forfeiture as having been 
illegally collected and the amount refunded to him. C. 6392, Nov., 
1898; 11594, Nov. 13, 1901; 11742, Dec. 11, 1901; 11786, Dec. 23, 
1901; 11576, Jan. 8, 1902; 12596, May 10,1902; 16955, Sept 28, I9O4. 

Ill F 1. The sentence of dismissal in the case of a West Point 
cadet was commuted to suspension. Held, that no forfeiture of pay 
was involved in the suspension.* 0. 3226, May 26, 1897. 



CROSS REFERENCE. 

dadets not entitled to mileage See Army I D 5. 

Deserter See Discharge II B 2. 

Forage to retired officers See Army I G 3 b (2) (c). 

Medical Reserve Corps officer See Army I G 3 d (3) (c) [2]. 

Mileage to retired officers See Retirement I M to N . 

Militia See Militia VI B 2 h. 

Officer fails on promotion See Retirement I B 6 c (2) ; (3). 

Officer wholly retired See Retirement I N 3. 

Retired officer on college duty See Retirement I K 3 a. 

Soldier while absent See Absence II B 8 a. 

Desertion XIV A 1. 

1 See 32 Qt. CIs., 139. 



PAYMASTER'S CLEEK PENSION. 871 

PAYMASTER'S CLERK. 

Appointment of. See Office III E 2. 

PEACE OFFICER. 

Arrest of deserters , . See Desertion III A to H; V A to G. 

PENAL STATUTE. 

Forty-eighth article of war See Articles of War XLVIII D. 

PENALTIES. 

See Contracts XIX to XX, 

PENALTY ENVELOPES. 

Use of. See Communications II A to B. 

Use of, by militia See Militia XIV A. 

PENITENTIARY. 

Clemency See Articles of War CXII Ale (l). 

Confinement in See Articles of War XCVII A to E. 

Desertion X C 1; 2. 

Delivery of prisoner to See Discipline XVII A 4 h (1). 

Discharge"withoutho)ior for incarceration in. See Discharge III F 1. 

Mitigation of confinement in See Discipline XIV H 3. 

Sentence to confinement in See Discipline XIV E 9 a (17); g; g (1). 

PENSION. 

I. ARMED QUARTERMASTER'S EMPLOYEES. 

A. In Philippines. 

1. Did not have pensionable status Page 871 

n. PENSION MONEY. 

A. Before Payment Not Subject to Attachment. 

I A 1. During the Philippine insurrection a force of armed Filipinos 
was formed in the Quartermaster's Department, which in the case 
of certain organizations was called Macabebe Scouts. Held that 
this was an organization of civilians and that they had no pensionable 
status, a 11981, Feb. 27, 1902, and Apr. 29, 1903. 

II A. Held that pension money is exempt from attachment or 
seizure, under Section 4747 R. S., before payment to the pensioner, 
but no such exemption exists in favor of property purchased with 
pension money. ' C. 6393, May 12, 1899; 6799, July 29, 1899; 
7823, Mar. 17, 1900; 6430, Dec. 6, 1908; 24346, Jan. 19, 1909. 

cross reference. 

Administration of pension laws See Enlistment I D 3 e (1). 

Retired officer as counsel in case of See Retirement I G 2 a. 

Taxation of pensioner See Tax I to II. 

Waiving right to See Office III A 5. 

1 See Mcintosh v. Aubrey, 185 U. S., 122. 

Memo. — In some States lands purchased out of pension money are exempt from 
taxation, but there is no such exemption under any law of the United States. 



872 PER DIEM EMPLOYEE PHILIPPINE ISLAiSTDS. 

PER DIEM EMPLOYEE. 

See Civilian Employees. 

PERJURY. 

Evidenceof See Discipline XI A 9;9 a. 

Proof of. '. See Discipline XV F 1. 

Under fifty-ninth article of war See Articles op War LIX I 3. 

PERMIT. 

Structures, etc See Navigable Waters V to VI. 

PERSONAL PROPERTY. 

See Public property I A 3. 
Public,cannotbe loaned by Secretary of War. Sea Public propebty I C. 
Public, title to after treaty of peace See War I D 1. 

PERSONAL SERVICE. 

Under 3709, Revised Statutes See Contracts VII D. 

PERSUADING TO DESERT. 

See Article op War LI A. 

PETITION. 

By officer See Discipline II A 1 d. 

PHILIPPINE CONSTABULARY. 

See Territories IV B to C. 

Command by chief of See Army II G 1 a; 2 a (1). 

Officers See Retirement II A 3 a. 

PHILIPPINE INSURRECTION. 

See War I B 3; F 3. 
PHILIPPINE ISLANDS. 

See Territories IV to V. 

Civil courts, jurisdiction of See Articles op War LVIIl D, 

Civil government, duty with See Absence I B 1 g (3). 

Civil governor See Army II G 2 a (1). 

Civiloffice See Office IV A 2 d (2) to (3); e (6)(6)to 

(7). 
Colleges in See Military instruction II B 1 d. 

See Retirement I K 3 b. 

Enemy's property See Claims VII A. 

Extradition from See Extradition IV. 

Fifty-fourth article of war See Articles of War LIV G. 

Military governor See Claims VII E. 

Natives See Enlistment I C 1 f . 

Naturalization in See Alien III. 

Order in See Army II G to H. 

Philippine bonds See Bonds I H 4. 

Sureties for contracts See Bonds V J. 

Transport See Retirement II A 4 b (2). 



I>HILIPPINE SCOUTS POLICY. 873- 

PHILIPPINE SCOUTS. 

See Army II to III. 

Certificate of merit See Insignia of merit II H 2. 

Chief of Constabulary See Army II G 1 a; 2 a (1). 

Death See Gratuity I B 3 a. 

Desertion See Desertion XIV B 1 . 

Insane See Discharge XIII D 4 b. 

Army II G 1 a. 

Not foreign service See Retirement II A 4 c. 

Officer See Retirement I B 5 a; II A 3; D 2. 

Part of Regular Army See Army I G 2 a (2) (a). 

Articles op War LXXVII A 1. 

Discharge VI D 6. 
Reenlistment bonus See Pay and allowances I C 5 c. 

PIRATES. 

Recovery of property froin salvage See Claims VI A. 

PLEA IN ABATEMENT. 

See Discipline II D 17 a; H 2: IX F 2 a: 
XIV E 7 c. 
Incorrect description See Discipline XIV E 7 a, 

PLEA IN BAR. 

Civilian status See Discharge XIII D 6 b. 

Desertion cases See Articles op War XLVIII F. 

Pardon See Discipline IX F 1 a to b. 

Statute of limitations See Articles op War CIII B . 

PLEDGE. 

Abstain from v^e of liquor See Pardon XV A . 

Accompanying resignation See Oppice IV D 4. 

Violation of. See Articles op War LXI B 5; LXII D. 

POLICEMAN. 

Witness fees of. , See Discipline X I 8. 

POLICY. 

Character, how affected by trial See Enlistment I D 3 d (5). 

Civil authorities, turning prisoners over to . . See Army I A 6. 

Civil courts, defense of officers See Army I B 5 a. 

Collection of private debts See Private debts IV. 

Congressional relief for officers See Army I B 6 a. 

Counsel for accused officers See Discipline V G 6. 

Deserters, reenlistment of. See Enlistment I D 3 c (14). 

Discharge II B 2 a. 

Discharge without honor See Discharge III B ; B 1 to 5a. 

Discharge without honor not to be given after 

acquittal .See Discharge III B 4. 

Discharge without honor not given after trial 

on issu£ See Discharge III B 5. 

Enlistments, unconditional See Enlistment I A 6. 

Fraudulent enlistments, disposition of.. . . .See Enlistments I A 9 g to k. 
Judge Advocate General as to State questions .See Army I G 3 a (4) (a) [4]. 

Military instruction of civilians See Retirement I K 3 c. 

Minor, age how fixed See Discharge XII B 1. 

Minors, discharge of. See Discharge XII D 1 ; 2. 

Neutrality cooperation with State See Army II K 1 g (1); (2). 

Reenlistment of deserters See Discharge II B 2 a. 

Sentence set aside See Discharge III B 5 a. 

Trial in case of homicide See Discipline XVII A 4 g (6). 

United States in Philippine Islands See Claims VII A. 



874 PORTO KICO POST EXCHANGE. 

POETO EICO. 

Civil office in See Office IV A 2 e (6) (a). 

Colleges See Military Instruction II B 1 g. 

Retirement I K 3 c. 

Funds of. See Claims V. 

Military commission, confinement of natives. See Appropriations LXI. 

Military government customs See Public Money I I. 

Natives, appointment of. See Office III Ale (2). 

Provost courts See War I C 8 a (4). 

Public domain See War I C 6 c (3) (/) [1]. 

Public property See War I D 1. 

Punishment See Discipline XII B 2 e. 

Regimental appointments See Army I G 2 a (1) (a); (b). 

Office III Ale (1). 
Sovereignty over See Enlistment I C 1 e (1). 

POSSE COMITATUS. 

See Army II F; I 1. 
Alaska See Territories III B. 

POST COMMANDER. 

Church, can not require attendance at See Articles of War LII A. 

Civilians See Command V A 2 a; 3 a; b; c; c (1); d 

(1); f; g; 8. 

Discipline XVII A 4 g (4). 
Public Property II B 3 a. 

Death of officer or soldier See Articles of War CXXVII A. 

Command V A 7. 

Duty, always on See AIrticles of War XLVIII B 1. 

Exceeds authority See Command V A 2 e ; f 4. 

Fiftyfourih article of war See Articles op war LIV A to LIV H 2. 

Fifty-ninth article of war See Articles of War LIIJ^ A to L 2. ,, 

General court-martial, authority over See Command V A 4; 5. 

Joint encampment See Articles op War CXXII B . 

Leave, granting of See Absence I B 4 c (1). 

^ Command V A 1 b. 

Mitigation by See Articles of War CXII E. 

Officers, relieved See Absence I B 1 e. 

Command V A 1 a. 

Post exchange council See Government Agencies II J 3. 

Privileges refused by See Command V A 2 a. 

Saloons, etc See Command V A 2 b. 

Sentence, suspension of. See Discipline XVII A 4 e. 

Sick, control over See Command V A 2 d. 

Summary court See Discipline XVI E to F. 

Telegrams See Communications III A. 

Travel orders by See Command V A 1 c. 

Warrant of arrest, receipt of. See Articles op War CII I. 

Writ of habeas corpus, receipt of See Command V A 6 a; b; b (1); (1) (a). 

POST COMMISSARY SERGEANT. 

Summary discharge of See Discharge XXV A. 

POST EXCHANGE. 

See Government agencies. 

Appropriation for See Appropriations XXIX. 

Contracts by See Government agencies I E. 

Debt to See Articles op War LXII D. 

Laundry work See Contracts VII I. 

Library books See Public property IX A 3 a. 

Militia ! See Militia XV to XVI. 

Reimbursement by retired soldier See PvETIrement II C 2. 

Stoppage of pay to reimburse See Government agencies I B, 



POST HOSPITAL PKIVATE COKEESPONDENCE. 875 

POST HOSPITAL. 

See Aemy I G 3 d (8) to H. 
POST LIBRARY. 
Boohs Jor See Public property IX A 3 a. 

POSTMASTER. 

Enlisted man as See Army I E S a (1) . 

Oath by See Office III A 8 a (2). 

Witness Jees oj See Discipline X I 9, 

POST NONCOMMISSIONED STAFF OFFICER. 

See Army I E 2 a; b; c. 
Summary discharge oJ See Discharge XXV A. 

PRACTICE MARCH. 
Evasion of. See Articles of War XXXII C. 

PRESENT. 

Acceptance of, by officer See Army I C 4. 

PRESIDENT OF COURT-MARTIAL. 

See Discipline VI G 1 to 3; VII C 2; IX 
LI. 
Record corrected oy See Discipline IX N 6 

PRESIDENT OF UNITED STATES. 

As Commander in Chief. See Army I A to B . 

As convening authority See Discipline III B to 0. 

Disrespect to See Articles of War XIX A. 

As Reviewing Authority See Discipline XIV H to I. 

Pardon by See Pardon I to II. 

PREVIOUS CONVICTION. 

See Articles of War LXXXIV C 3. 

Board of officers See Discharge III C. 

Evidence of. See Discipline XII B 1 to 2. 

Of desertion See Desertion X B. 

PRISONER. 

Counsel See Command V A 5. 

Illegally released See Discipline XIV 6. 

Interned See Army II K 1 h (1). 

PRISONER OF WAR. 

See Claims VIII. 

See War I C 11 to 12. 

Abuse of. .See War I C 8 a (3) (d) [5]. 

Charge of desertion removed See Desertion XVI Cf 1. 

Enlistment of. See Desertion I C 2. 

Muster out of. See Discharge XIII F. 

Volunteer Army IV D 1 a (4) (c). 

Officer, dismissal of. See Office I V E la. 

Trial by military commission See War I C 8 a (3) (6) [2]; (c) [1] [a]. 

PRIVATE CORRESPONDENCE. 
Evdience of See Discipline XI A 17 6 (1) (a). 



8Y6 PRIVATE DEBT: SYNOPSIS. 

PRIVATE DEBT.i 

I. DISTINGUISHED FROM DEBT TO UNITED STATES Page 876. 

n. STOPPAGE OF PAY FOR— ACT OF JULY 16, 1892 Page 877. 

m. WAR DEPARTMENT WILL NOT PROTECT OFFICERS AND SOL- 
DIERS AGAINST SUITS TO COLLECT PRIVATE DEBTS. COUNSEL 
NOT FURNISHED TO RESIST EXECUTION ALTHOUGH JUDG- 
MENT ARISES OUT OF OFFICIAL CONDUCT. 

IV. PROCEDURE ON COMPLAINT OF FAILURE TO PAY Page 878. 

V. JUDGMENT CONCLUSIVE AS TO INDEBTEDNESS Page 879. 

VI. DEBTS INCURRED BEFORE ENTERING SERVICE. 
vn. WHEN LIST OF PRIVATE DEBTS MAY BE REQUIRED OF OFFICER. 
Vra. OFFICERS MAY NOT APPLY MONEY OF SOLDIER IN THEIR CUS- 
TODY TO HIS PRIVATE DEBTS Page 880. 

IX. ARREST OF SOLDIER ON MESNE PROCESS, ETC. SECTION 1237, 

REVISED STATUTES. 
X. DEBTS OF CIVILIAN EMPLOYEES. 
XI. EXEMPTION FROM ATTACHMENT OR EXECUTION Page 881. 

I. By "private indebtedness " is meant an indebtedness to a private 
creditor as distinguished from an indebtedness to the United States or 
to an agency or instrumentahty of the United States. The fact that all 
parties coimected with the alleged indebtedness are members of the 
Army does not alter the private character of the indebtedness. C. 
14438, June 29, 1,910. The fact that the indebtedness has grown out 
of the relations of the military service does not alter the private 
character of the indebtedness, as, where a discharged soldier regularly 
assigned his fuial statements, which upon presentment for payment 
were found to call for more than was in fact due, and the soldier 
reenlisted. Held, that the difference between the proper amount 
which was paid and the amount erroneously called for on the final 
statements was not an indebtedness owing by the soldier to the United 
States, and the pay of the soldier can not be stopped to satisfy it. 
C. 13604, Mar. 20, 1903; 22247, Oct. 24, 1907. So where a discharged 
soldier regularly assigned his final statements, which upon present- 
ment for payment, were found to call for more than was in fact due, 
lidd, that any claim growing out of the fact that the officer signing 
the final statements made erroneous entries on them was not a claim 
in favor of the United States, but was a private claim in favor of the 
assignee. C. 13604, Aug. 17, 1911. 

In the following instances it was held that the indebtedness was a 
private indebtedness for the satisfaction of which the officer's or 
soldier's pay could not be stopped or diverted. A claim by a wife 
against her husband, an Army officer, for support of herself and 
children (C. 26935, July 18, 1910); or a decree for alimony against 
an Army officer or soldier on the active or retired list (C. 3500, Sept. 
9, 1897; 6882, Aug. 15, 1899; 13439, Oct. I4, 1902; 17915, May 4, 1905; 
22358, Dec. 3, 1907; 26991, July 20, 1910) ; 13395, Oct. 19, 1910; or a 
decree for alimony against a soldier, rendered before enlistment 
(C. 7635, Feb. 3, 1900; 11383, Oct. 16, 1901). A claim by the wife 
based on a formal separation agreement duly signed by an Army 
officer and his wife, whereby he agreed to pay her a fixed sum peri- 
odically and to deposit his pay accounts regularly with the proper 
paymaster with an indorsement directing the paymaster to pay nis 
wiie a certain sum (the reason being that the officer's promise in the 

^ Prepared by Maj. H. M. Morrow, judge advocate, assistant to the Judge Advocate 
General, United States Army, 



PRIVATE DEBT 11. 877 

agreement was equivalent to no more than an acknowledgment of a 
private indebtedness). C. 26991, July 22, 1910. A claim against a 
soldier for taxes due a Russian Commune from which the soldier had 
emigrated. C. 2^922, May 8, 1909. 

Pay due a soldier can not be stopped to reimburse a telegraph 
company for moneys received by the soldier (a sergeant of the Signal 
Corps), for transmitting private messages over its line, the same 
not being a line "operated by the United States" in the sense of 
the act of March 3, 1883 (22 Stat. 616), and the indebtedness of the 
sergeant therefore being to the telegraph companv and not to the 
United States. P. 61, 185, Aug. 24, 1893. 

Notwithstanding that an officer's mess is aided by an allowance 
of public quarters and fuel, such a mess is a private undertaking 
and indebtedness due from an officer can not be stopped against 
his pay. C. 18016, May 18, 1906. Notwithstanding that the 
regulations for the government of the Infantry and Cavalry School 
provide that the commandant may "assign an officer to the duty 
of supervising the accounts of the messes established for the accom- 
modation of student officers," it appearing that such messes are not 
operated by the United States, and that no Government obligation 
is incurred in respect to their maintenance, the indebtedness of an 
officer to the officers' mess is a private indebtedness, and his pay 
can not be stopped to satisfy such indebtedness. C. 22200, Oct. 
22, 1909. Notwithstanding the fact that a laundry at a post is 
designated "post steam laundry," and is operated under regula- 
tions of the War Department providing for proper sanitary super- 
vision, as the United States incurs no obligation in respect to its 
maintenance, the indebtedness of an officer to the laundry is a 
private indebtedness and his pay can not be stopped to satisfv such 
indebtedness. C. 22200, Oct. 22, 1907. 

II. The pay of an officer or soldier can not be stopped or diverted 
for the payment of private indebtedness or a private claim, except 
as provided bv statute. C. 5^6, Bee. 10, 1898; 6103, Mar. 23, 
1899; 6882, Aug. 13, 1899; 13395, Apr. 29, 1909. The Army appro- 
priation act of July 16, 1892 (27 Stat. 177), provides that "the pay 
of officers of the Army may be withheld under section 1766, R. S., 
on account of an indebtedness to the United States admitted or 
shown by the judgment of a court, but not otherwise unless upon 
a special order issued according to the direction of the Secretary of 
War." Held, that the last part of this provision (the words "unless 
upon a special order issued according to the direction of the Secre- 
tary of War") was to be construed not separately but in connection 
with the former, and relates only to stoppages against persons in 
arrears to the United States, and could not be interpreted as empower- 
ing the Secretary of War to stop the pay of officers or the Army to satisfy 
private debts. P. 64, 154, Mar. 13, 1894; C. 7635, Feh. 3, 1900. 

III. Officers and soldiers may be sued in the civil courts by their 
alleged private creditors and it is not the policy of the War Depart- 
ment to afford them protection against such suits. P. 64, 63, 
Feh. 27, 1894; C. 23624, July 21, 1908; 20063, Apr. 25, 1910. After 
a fuial personal judgment has been rendered against an officer the 
War Department will not recommend that counsel be furnished at 
the Governm.ent expense or that other affirmative action be taken 
by the Department to enable that officer to resist the execution of 



878 PRIVATE DEBT IV. 

the judgment, even though the judgment is based on conduct of the 
officer connected with his official position, as, for instance, where 
the officer, in obedience to the order of his commanding officer, 
removed certain trespassing horses from the reservation, but the 
owner claimed the horses were removed in a cruel and wanton 
manner, thereby damaging the animals, and the jury so foimd. 
C. 22007, Apr. 18, 1911. 

IV. The mihtary authorities will not compel officers and soldiers 
to pay disputed private indebtedness or claims — that is, indebtedness 
or a claim where in the opinion of the military authorities there is a 
genume dispute as to the facts or law, nor will the mihtary authori- 
ties Ptttempt to decide such disputed mdebtedness or claims. If the 
indebtedness is disputed the creditor should resort to the civil courts 
to establish the habihty. 

If, in the opinion of the military authorities, the facts and law are 
undisputed and there appears to the military authorities to be a pri- 
vate indebtedness, and the officer or soldier does not claim to have a 
legal or equitable set-off or counterclaim to urge against it, he will 
be advised to settle it, and in case of failure to do so as rapidly as his 
financial condition permits an officer may be brought to trial if his 
failure is considered to be a violation of the sixty -first ^ or sixty -second 

^ In U. S. V. Fletcher, 26 Ct. Cls., 541, the question was raised by counsel as to the 
sufficiency of specifications alleging nonpayment of indebtedness to sustain a charge 
of "conduct unbecoming an officer and a gentleman, " and the court decided that this 
may consist in refusing to pay a debt, adding: "It must be confessed that, in the affairs 
of civil life, and under the rules and principles of municipal law, what we ordinarily 
know as fraud relates to the obtaining of a man's money, and not to refusing to 'p&y 
it back. * * * In military life there is a higher code, termed honor, which holds 
its society to a stricter accountability; and it is not desirable that the standard of the 
Army shall come down to the requirements of a criminal code." 

"The Secretary of War does not undertake the collection of debts due private per- 
sons from officers and soldiers, nor to require a preference for any particular creditor 
in payment in such cases. His aim is to protect the character and standing of the 
Army, and to eliminate from it those guilty of dishonorable conduct. Where charges 
of such conduct are made they will be promptly investigated, and where statements 
of nonpayment of debts are made against officers, they will be investigated with this 
end in view." Ruling, Secretary of War, Nov. 18, 1897, copy filed with documents 
toC. 3649, J. A. G. O." 

Complaints of nonpayment of debts due from officers on the active list and under 
the control of department commanders are in practice referred for the "necessary 
action" to the proper headquarters and the complainants notified of the above ruling 
of the Secretary of War. The complaints need not be accompanied by or be in the 
form of formal charges. A statement of the acts and conduct complained of is sufficient 
as a basis for investigation. Formal charges can be prepared when as a result of the 
investigation such action is required. 

In Cir. 47, W. D., July 16, 1910, the War Department announced its policy as to 
assisting in the collection of private debts of enlisted men as follows: 

"In view of the fact that the practice by dealers of selling articles of merchandise 
to enlisted men on credit burdens the War Department with unnecessary correspond- 
ence in the cases of nonpayment of the indebtedness, and that such transactions, which 
are rapidly increasing in number, often involve enlisted men in debts which they can 
not pay, and frequently lead up to desertion, the following statement of the policy of 
the department with respect to this matter is published for the information and guid- 
ance of all concerned: 

"The department will no longer concern itself with the business of persons, firms, or 
corporations selling merchandise to enlisted men on credit, and all communications 
with respect to siich sales, and all arrangements looking to the establishment of such 
business relations, must be had with the commanding officers of the organizations to 
which the enlisted men belong. The War Department will decline to assist, by 
answering inquiries or otherwise, in securing the payment of obligations of this char- 
acter tliat are incurred without the previous knowledge and consent of the command- 
ing officers of the organizations to which the debtors belong." 



PRIVATE DEBT V. 879 

article of war, and a soldier may be tried if his failure is considered to 
be a violation of the sixtv-second article of war, but no action will be 
taken by the mihtar}' authorities to enforce payment. If the facts 
and law, in the opmion of the mihtary authorities are undisputed, 
and there appears to the military authorities to be no indebtedness, 
the department will take no further action. C. 13047, Aug. 21, 1902; 
14438, Apr. 6, 1903, and June 29, 1910; 13395, June 26 and July 
6, 1906; 200S8, July 30, 1906; 23286, May 25, 1908; 20063, Apr. 25, 
1910, May 25 and Dec. 11, 1911; 26991, July 22, 1910, and May 23, 
1911; 13604, Aug. 17, 1911. Where a soldier was largely indebted 
and foiled to pay his indebtedness and the commanding officer 
denied the soldier aU pass privileges until the indebtedness was paid, 
Tield, that such action on the part of the commanding officer consti- 
tuted an attempt to enforce payment of the indebtedness and was 
contrarv to the policy of the War Department and such action should 
be revoked. C. 13395, Aug. 18, 1910. 

V. After a claim against an officer or soldier has been reduced to a 
final personal judgment, if no proceedings are pending to set it aside 
it wiU. be considered by the War Department as an indebtedness 
beyond dispute. C. 20063, Apr. 25 and May 4, 1910; 26858, June 8, 
1910; 26991, May 23, 1911. An explanation of the nature of the 
judgment claim, and such defenses to the merits of the judgment 
claim as could have been presented to the court, will not be con- 
sidered by the War Department to determine whether there is an 
indebtedness in fact, the judgment being deemed conclusive on that 
point, but the explanation and defenses may be considered to deter- 
mine whether the failure to satisfy the judgment properly constitutes 
a violation of the sixtj-first or sixty-second article of war. O. 9651 , 
July 29, 1902; 13576, Feb. 2, 1903; 14438, Apr. 6, 1903; 16111, Aug. 
17, 1903; 20063, Apr. 25 and May 4, 1910; 26858, June 8, 1910; 
26991, July 20, 1910. No distinction will be made between judg- 
ments based on a contract and those based on a tort. C. 20063, 
May 4, 1910; 26858, June 8, 1910. 

VI. The War Department will not make private indebtedness * or 
an irregular transaction of an officer or soldier antedating ejitry into 
the service the basis of charges, but if conduct since entry into the 
service in respect to matters antedating entry constitutes a military 
offense charges may be preferred on account of such conduct. 
C. 15088, Aug. 12, 1903; 13395, June 23,^ and Oct. 4, 1910. A dis- 
honorable failure of an officer since entry into the service to pay pri- 
vate indebtedness contracted before entry may properly be made the 
basis of charges. C. 19829, Mar. 24, 1910. 

VII. Wliere the failure of an officer to pay his private debts 
threatens scandal to the service it becomes the duty of the officer's 
superiors to investigate his indebtedness and to call upon the officer 
for information. Under such conditions the officer may legally be 
ordered to submit to superior authorities a schedule of all his private 
indebtedness, and a refusal to obey the order will constitute a viola- 
tion of the twenty-first article of war. C. 19525, Apr. 13, 1906. 



* Sec. 1237, R. S., provides "No enlisted man shall, during his term of service, be 
arrested on mesne process, or taken or charged in execution for any debt, unless it 
was contracted before his enlistment, and amounted to twenty dollars when first 
contracted." 



880 PRIVATE DEBT VIII. 

VIII. Private B claimed that Private A owed him money. Private 
A was discharged without paying the alleged debt. Subsequently 
Private C being indebted to Private A gives a sum of money to the 
former company commander of Private A as money due Private A. 
The company commander, without the consent of the former Private 
A, pays this money to Private B to apply on the former Private A's 
alleged indebtedness to Private B. Held that the company com- 
mander had no authority to adjudicate and settle the alleged in- 
debtedness of the former Private A, and is liable to him for the 
amount paid to Private B. C. 14439, Apr. 6, 1903; £1947, Aug. 21, 
1907; 13396, Sept. 3 and Oct. 4, 1910. So where a company com- 
mander took the money of a soldier of his company at the pay table 
and applied it without the soldier's consent to the payment of certain 
alleged indebtedness, held that his action was completely without the 
authority of law and he would be liable to the soldier for the money so 
expended. C. 13395, Sept. 3, 1910. 

IX. The arrest of an enlisted man for a contempt in not complying 
with the legal order of a civil court to pay a certain sum for the main- 
tenance of his wife, is a legal proceeding and not within the prohibition 
of section 1237, R. S., that "no enlisted man shall, during his term of 
service, be arrested on mesne process, or taken or charged in execution 
for any debt, unless it was contracted before his enlistment and 
amounted to twenty dollars when first contracted." Such an arrest 
is not an arrest "on mesne process" or "in execution for a debt," 
but an arrest on a judgment on conviction of a criminal offense,^ 
analogous to an imprisonment duly adjudged on conviction of an 
ordinary crime or misdemeanor. P. 51, 475, Feb. 1, 1892. There is 
no statute like 1237, R. S., by which a commissioned officer is ex- 
empted from arrest for debt, where such arrest is otherwise legally 
authorized. R. 33, 8, Mar. 23, 1872.'' 

X. The salary of a civilian employee can not be stopped for the 
payment of private indebtedness even though it is a judgment debt. 
C. 18830, Nov. 14, 1905. The fact that the indebtedness has grown 
out of the relations of the military service does not alter the private 
character of the indebtedness, as, for instance, where the alleged 
indebtedness consisted of the claim of a soldier against a civilian 
employee for the loss of the soldier's property caused by the official 
negligence of the employee (C. 26835, June 4? 1910), or where the 
indebtedness consisted of a claim of a civilian for damages against the 
civilian master of a Government tug on account of injury caused by 
gross carelessness of the master in handling the tug. C. 24258, Dec. 
28, 1908. As a contract surgeon is a civilian employee his pay can not 
be stopped to pay a judgment in favor of a private person. C. 23759, 
Aug. 24, 1908. However, if the circumstances connected with the 
indebtedness of a civilian employee make his honesty questionable 

^ That contempt of court is "a specific criminal offense." See New Orleans v. 
Steamship Co., 20 Wall., 387, 392. 

2 See Moses v. Mellett, 3 Strobh., 210; McCarthy v. Lowther, 3 Kelly, 397; Ex parte 
Harlan, 39 Ala., 565. But note in this connection the general principle of public 
policy by which public servants are exempted from arrest on civil (though not on 
criminal) process while on public duty. United States v. Kirby, 7 Wall., 482; 
Coxson V. Doland, 2 Daly, 66. 



PRIVATE DEBT XI. 881 

action may be taken looking toward dismissal.' C. 18830, Nov. I4, 
1905. Where a civilian loaned money to a Government clerk the 
money to be loaned by the clerk to his fellow employees at a usurious 
rate of interest; lield, that the loan to the clerk was partly on the 
strengtli of the clerk's official position and that it would be proper 
to compel the clerk to repay the loan in installments under penalty 
of dismissal for failure to do so, on the ground that the evasion of his 
obligation to repay the loan would constitute dishonesty on the 
clerk's part. C. 27856, July 12, 1911. 

XI. Held that the personal property of an officer required to be 
possessed and used by him in the regular performance of his military 
duties — as, for example, his sword, or, in a case of a mounted officer, 
his horse — could not legally be seized upon an attachment or execution 
issued in a suit brought in a State court. R. 33, 8, Mar. 23, 1872. 

Held, on the analogy of the principle protecting an officer's pay 
from being taxed by the authorities of a State that the necessary 
baggage of an officer traveling on duty, of not greater amount 
than allowed by the Army Regulations to be transported with him at 
the public expense, was properly exempt from attachment in a suit 
for a private debt. An officer, however, can not be allowed to claim 
such an exemption to an unreasonable extent, and should he assume 
to transport or procure to be transported with him any considerable 
amount of baggage greater than that permitted by the regulations, 
he would justly become liable to the consequences of the abuse of his 
privilege. In such a case he could not claim to be sustained by the 
Government in resisting an attachment or execution levied upon his 
effects. R. 35, 484, July 15, 1874. 

CROSS REFERENCE. 

Court-martial has no jurisdiction over See Pay and allowances III D 2. 

For medical attendance while absent See Claims VIII. 

Nonvavinent of See Articles of War LXI B 9 a; b; 9 c; 

Pay not stopped to satisfy See Civilian employees II A. 

Pay and allowances III B 4; 6. 
Retired soldier See Retirement II B 3 a. 

^ Under date of Apr. 2, 1902, the Secretary of War issued the following circular: 

"Hereafter the War Department will take no cognizance of a debt complaint 
against an employee, so far as the creditor is concerned, beyond acknowledging 
receipt of his communication. Creditors and collectors will be denied access to 
employees for the purpose of pjresenting or collecting claims during the hours set 
apart for the transaction of public business. 

"But while the Department will not permit itself to be used as a collection agency, 
it will not harbor any one who contracts a debt on the strength of his official position 
and then without sufficient excuse neglects to make payments, and upon receipt of a 
debt complaint it will be referred to the proper chief of bureau for a report in writing 
from the employee concerned, which, together with a notation of the conclusions 
reached by the Department in the iriatter, will be made part of the official record in 
his case. 

"An employee who contracts indebtedness on the strength of his official position 
and then without sufficient excuse or reason neglects or avoids payment thereon will 
be discharged . " 

While the above circular does not in words rescind a former circular dated May 19, 
1897, issued by the Secretary of War, it partially covers the ground covered by the 
former. 

93673°— 17 56 



882 PRIVATE PEOPERTY— PROCLAMATION BY PRESIDENT. 

PRIVATE PROPERTY. 

Abandoned See Public property I K. 

Capture during war %. See War I C 6 c to d. 

Damage to See Appropriation LVIII. 

Articles of War LIV to LV. 

Militia VI B 2 m; C 1 i; j. 

Destruction in battle See War I C 6 a to b. 

Escheat See Army I G 3 d (8) (b). 

Exemption from, attachment See Pensions II A. 

Private debts XI. 

Finding See Army I G 3 b (2) (a) [3] [dl 

Forfeiture of See Discipline XII B 3 e (3); XIV C 

General average contribution See Claims VI C 

Larceny of, in hospital See Claims IX; XII R. 

Medal of honor See Insignia of merit I A 1 c. 

Navigable waters See Navigable waters I A 1 a (1). 

Occupation of See Claims IV; VII C to D. 

Contracts XXV. 

Prisoner's See Discipline XVII A 4 g (5). 

Recapture See War I C 6 c (3) (e) [1]. 

Reserved for public use See Public property III A 2. 

River and harbor work See Navigable waters X D 3. 

Salvage of. See Claims VI B. 

Soldier's clothing is not See Pay and allowances II A 3a (4) (a): 

(c). 

Taxation See Tax. 

Use of, during war See War I C 6 b (1) to (2). 

Warrants of noncommissioned officers See Army I E 1 a. 

PRIVILEGE. 

Arrest is not See Discipline I" D 2. 

Contract surgeon purchasing supplies See Army I G 3 d (4) (c). 

Enlistment See Enlistment I B 3 a; D 3 c (6). 

Leave of absence See Absence I B 1 a; C 1. 

Command V A 1 b. 

Medical reserve officers See Army I G 3 d (3) (c) [1]. 

National Guard customs See Militia III J. 

Promotion See Army III B 2. 

Trial is not See Discipline V A. 

Withholding of, by commanding officer See Discipline XVII A 2. 

PRIZE MONEY. 

Not authorized See War I C 6 ic) (3) [c]. 

PROCEDURE OF BOARD. 
Retiring , See Retirement I B 1 d to e. 

PROCEDURE OF COURT MARTIAL. 

See Discipline IX to X. 

PROCEDURE OF MILITARY COMMISSION. 

See War I C 8 a (3) {d) to {e). 

PROCLAMATION BY PRESIDENT. 

Amnesty See Pardon XI . 

Indian War See War I A 5 a. 

Declaration of martial laiv See War I E 1 b; c (1). 

Instances of See War I C 8 c (1) . 

Pardon to deserters See Desertion XV B to C, 

Peace in Philippines See War I F 3. 

Revocation of suspension of writ of habeas 

corpus See War I C 12 a; E 1 a. 

Riots See Army II I 1. 

War I B5a(l). 
Suspension of writ of habeas corpus See Wa rIC12; Ele. 



PEOFIT PUBLIC money: SYNOPSIS, 883 

PROFIT. 

Not paid on claims See Claims VII B 1. 

PROHIBITION LAW. 

Military reservations See Public property V F 1 a (1). 

PROMOTION. 

See Office III B to C. 

Constructive pardon See Pardon XV C 1. 

Detailed staf officer '. See Army I G 3 b (4) (6); (c). 

Office III D 2 to 3. 

Disbursing officer's bond See Bonds II E ; I ; V F. 

Heat and light, increased See Pay and Allowances II A 1 c (5). 

Pardon See Pardon IV A. 

Pay, date of increased See Pay and allowances I B 1. 

Suspension, date See Rank V C to D. 

PROPHYLACTIC. 

See Articles of War XXI C 2 d. 

PROPERTY. 

Accountability See Absence I B 1 e. 

Public property I F to G. 

PROVOST COURT. 

Under miUtary government See War I C 8 a (4). 

PUBLIC DOCUMENT. 

Original charges See Discipline II K 1. 

Printing See Army I B 2 h (1); (2). 

PUBLIC LANDS. 

Secretary oj War, authority over See Army I B 2 b (3) (a). 

Target range on See Militia VI C 1 a. 

Transfer oj See Army I B 1 a (2). 



PUBLIC MONEY. 



t. WHAT CONSTITUTES PUBLIC MONEY? SECTIONS 3617 AND 3618 
REVISED STATUTES. 

A. Funds Received for Privileges and Facilities Given and Sales 

of Public Property is Public Money Page 885 

B. Funds Received as Damages is Public Money Page 886 

C. Funds Received for the Use of a Public Dry Dock is Public Money. 

D. Funds Received for the Use of a Portion of the Water Front of 

A Reservation is Public Money. 

E. Money Used in an Attempted Bribe of an Employee of the Gov- 

ernment AND Subsequently Seized by a Government Official 
IS Public Money. 

F. Money Received From Applicant for Enlistment Who Declined 

TO Enlist is Public Money Page 887 

* Prepared by Maj. H. M. Morrow, Judge Advocate and assistant to the Judge 
Advocate General U. S. Army. 



884 PUBLIC money: synopsis. 

I. WHAT CONSTITUTES PUBLIC MONEY, ETC.?— Continued. 

G. Unexpended Portion of Prison Fund not Used at United States 

Military Prison When Prison Turned Over to Department of 

Justice is Public Money. 
H. Money Received by a Government Official From a Private Citizen 

AS Compensation to Soldiers for Private Work Done by Them 

IS Not Public Money. 
I. Money Received by Army Officers Acting as Collectors of Cus- 
toms During Military Occupation not to be Accounted for as 

United States Funds. 
J. When Proce'eds of Sale of Empty Packages, etc., That Contained 

Supplies are to be Accounted for as United States Funds. 
K. Proceeds of Sale of Abandoned Private Property Found in Gov 

ernment Storehouse is Public Money Page 888 

L. Proceeds of Sale of Abandoned Civilian Clothing of Recruits 

IS Not Public Money. 
M. Proceeds From Sale of Garbage at Post Not to be Accounted 

for as United States Funds. 
N. a Fine Paid in Accordance With the Sentence of Court-martial 

IS Public Money. 
O. Money Found on the Body of an Unidentified Man Washed Ashore 

ON A Military Reservation is Public Money. 
Act of May 1, 1888, Relating to Funds Arising From " Incidental 

Sources " at Military Academy Page 889 

n. DISBURSING OFFICERS. 

A. Who is a Disbursing Officer. 

B. Responsibility of Disbursing Officer for Funds. 

1. General rule as to responsibility. 

2. Responsibility for forged checks. 

3. Responsibility for loss of check in mail Page 890 

4. Responsibility for loss of funds while being transported for pay- 

ment of troops. 

5. Responsibility for payment "without due care" within meaning 

of paragraph 665, Army Regulations, 1910. 

6. Responsibility in sending check to contractor by mail. 

C. Garnishment, Attachment, and Injunctions Relating to Payment 

OF Public Money. 

1. Funds in hands of disbursing officer can not be attached or gar- 

nisheed Page 891 

2. The purpose of an attachment can not be accomplished by bringing 

suit against the contractor and joining the disbursing officer as 
defendant Page 892 

3. Purposes of attachment can not be accomplished by attaching 

public funds on deposit in a bank. 

4. Subcontractor can not control disbursement of public funds by 

claiming a lien on money due the contractor and filing a notice 
of a lien with the disbursing officer. 

5. Subcontractor can not control disbursement of public funds by 

injunction against disbursing officer. 

6. Injunction against payment of public money by disbursing officer. 

D. Disbursing Officer Should Pursue in His Own Name Remedies 

Relative to Public Money Page 893 



PUBLIC MONEY I A. 885 

n. DISBURSING OFFICERS— Continued. 

E. Disbursing Officer Not Entitled to Credit for Expense of Col- 
lecting Money Due on a Check Drawn on Treasurer of Philip- 
pine Islands. 
m. SECTION 3620, REVISED STATUTES, AS TO DRAWING CHECK 

ONLY IN FAVOR OF PERSON TO WHOM PAYMENT IS MADE. 
IV. SECTION 1766, REVISED STATUTES, AS TO PAYING PERSONS IN 

ARREARS TO THE UNITED STATES. 
V. WHERE ACT PROVIDES THAT MONEY SHALL BE EXPENDED 
UNDER DIRECTION OF THE SECRETARY OF WAR, SECRE- 
TARY MAY COMMIT DISBURSEMENT TO ANY PROPER PER- 
SON Page 894 

VI. LIABILITY ON PAYMASTER'S CHECK INDORSED FOR IDENTI- 
FICATION BY PAYMASTER AND SUBSEQUENTLY RAISED IN 
AMOUNT AND CASHED BY AN ASSISTANT TREASURER OF 
THE UNITED STATES. 
Vn. ACT OF APRIL 20, 1874, AS TO INSPECTION OF DISBURSEMENTS 
APPLIES ONLY TO DISBURSEMENTS OF MONEYS APPRO- 
PRIATED BY CONGRESS. 
Vm. SECTION 3651, REVISED STATUTES, PROHIBITING THE EX- 
CHANGE OF FUNDS BY DISBURSING OFFICER. 
IX. GOVERNMENT ACCOUNTS SHOULD BE KEPT IN UNITED STATES 

CURRENCY ONLY. 
X. PARAGRAPH 694, ARMY REGULATIONS, 1910, REQUIRING THAT 
DAMAGE TO PUBLIC PROPERTY SHALL BE DEDUCTED FROM 
OFFICERS' PAY DOES NOT PREVENT OFFICER VOLUNTARILY 
PAYING THE AMOUNT OF THE DAMAGE TO A DISBURSING 

OFFICER Page 895 

XI. A PROVISION IN A LEASE OF GOVERNMENT PROPERTY WHERE- 
BY THE LESSEE MIGHT MAKE REPAIRS AND DEDUCT THE 
COST FROM THE RENT IS LEGAL. 

I A. Congress is vested by the Constitution with the exclusive 
power of disposition of the personal as well as the real property of the 
United States;^ and by section 3618, R. S., Congress has provided 
generally that the proceeds of sales of personal property of the United 
States shall be paid into the Treasury as "miscellaneous receipts," 
Held therefore that the various funds received at military posts, on 
military reservations or otherwise, as compensation for public prop- 
erty occupied, sold, or allowed to be used or appropriated, or for labor 
furnished, or privileges or facilities conceded, etc. (such as moneys 
received for rents of fisheries, for fallen timber, for surplus lumber, 
manure, etc., for metallic cartridge shells collected at target ranges, 
for grazing privileges, brickyard privileges, quarrying privileges, the 
privilege of cutting ice, repairs done to wagons, slioeing of teams, 
tolls for teams and wagons passing across reservations, etc.), were 
public money of the United States, to be accounted for to the Treas- 
ury, and could not be legally retained as a so-called "slush fund, " or 
disbursed for the use or benefit of the post or command. Otherwise, 
as to the proceeds of the sale of tlie savings from rations, or of the sale 
of any other company or regimental, etc., property. And money paid 

' U. S. V. Nicoll, 1 Paine, 646 (Fed. Cas., 15, 879); Seabury v. Field McAllister 1; 
U. S. V. Hare, 4 Sawyer, 653,669 



886 PUBLIC MONEY I B. 

to a band for playing to citizens, being for a quasi personal service, 
may go to the band fund. But the proceeds of all imllic froperty of 
any material value/ including all moneys exacted or received from 
civihans, are to be turned into the Treasury; and otherwise to dispose 
of them is embezzlement. P. J^S, 308, Oct 25, 1890; R. 52, 138, Feb. 
18, 1892; C. 29123, Oct. 16, 1911. So where money was received as 
fees for impounding animals which were found astray on a miUtary 
reservation, JieU that under section 3618, R. S., the money so 
received should be deposited in the Treasury, and this should be the 
procedure whether the funds were collected in the operation of the 
State law or in the operation of a post regulation merely. 0. 23964, 
Oct. 15, 1908. 

I B. Where an officer in charge of certain river and harbor im- 
provements exacted and received, from certain contractors for the 
work, sundry small sums of money claimed as due from them as 
amercements for damage or loss caused by them to the United States, 
lield that such sums were pubhc money of the United States, and that 
a failure to account for the same as such rendered the officer liable to 
a charge of embezzlement. P. 52, 137, Feb. 18, 1892. 

The commanding officer of a post having collected from a private 
citizen a sum of money for damage done to Government property at 
the post resulting from blasting, he proposed to deposit the money 
collected to the credit of certain specific appropriations according to 
the damage done, held that in view of sections 3617 and 3618, R. S., 
the monej collected could not be so deposited or expended, but should 
be deposited in the Treasury without deduction.^ C. 29225, Nov. 9, 
9, 1911. So held as to money collected on a contractor's bond as dam- 
ages suffered by United States in consequence of failure to complete 
the contract. C. 2527, Aug. 19, 1896. So held as to a stoppage for 
loss of Government property. C. 1644^, June 10, 1904. So held as to 
money deducted from a certified check to cover damages to the United 
States. C. 29402, Jan. 27, 1912. 

I C. Held that the amounts received from private parties as "com- 
pensation" for the use of the Des Moines Dry Dock, under the act of 
August 2, 1882 (22 Stat. 204), were public money, and, in the absence 
of any authority for the purpose in this act or other statute, could not 
legally be expended without an appropriation by Congress. P. 39, 
395, Mar. 13, 1890. 

I D. Held that money received as rent or compensation for the use 
of portions of the water front of the Fort Canby Reservation, Wash., 
for fish traps, was public money and was to be accounted for as such, 
and that it could not legally be turned kito the "mess fund" for the 
purchase of vegetables for the post. P. 4O, 73, Mar. 27, 1890. 

I E. Where an attempt was made to bribe an employee of the 
Government and the money offered as a bribe came into the posses- 
sion of a Government official, held that under section 3617, R. S., 
which provides that "the gross amount of all moneys received from 
whatever source for the use of the United States * * * gj^all be 

1 Pars. 690-1, A. R., 1910, provide that "Empty barrels, boxes, crates and other 
packages, together with metal turnings, ground bone, and other waste products, which 
accumulate at arsenals, depots, and military posts, and which are unsuitable for public 
service, " shall be disposed of by condemnation and sale. 

2 1 Comp. Dec, 568; VII id., 856; XIIT id., 484. 



PUBLIC MONEY IF. 887 

paid by the officer or agent receiving the same into tlie Treasury," 
the money should be deposited in the Treasury. C. 11082, Aug. 21, 
1901, and Aug. IJ^, 1908. 

I F. Wliere an applicant for enlistment declined to complete the 
enlistment at the end of the period of probation and insisted on 
depositing with the recruiting officer a sum of money to cover the 
expense to which the United States had been subjected on his account, 
lietd that the sum so deposited should be turned into the Treasurv 
under section 3617, R. S. C. 12780, June 27, 1902. 

I G. The regulations for the government of Mie military prison at 
Fort Leavenworth provided that where subsistence was drawn the 
officer in charge should draw such articles only as were prescribed in 
the diet for prisoners and should sell to the commissary the rations 
not dra\\Ti, and from the proceeds form a prison fund. This fund was 
added to by an occasional sale of products of the farm cultivated by 
the prisoners. The prison was turned over to the Department of 
Justice under an act which did not provide for transferring the prison 
fund. Held that under the provisions of section 3618, R. S., the 
unexpended portion of the prison fund should be covered into the 
United States Treasury as miscellaneous receipts. C. 1^81, June 25, 
1895. 

I H. Where a private citizen by blasting near a military post 
injured a telephone line at the post and employed certain soldiers to 
repair the same outside of the hours in which they were employed on 
military work, and subsequently deposited with the commanding 
officer a sum of money to pay the soldiers, held that the money should 
not be deposited in the Treasury, but the matter should be treated as 
a private transaction and the money turned over to the soldiers.* C. 
29225, Nov. 9, 1911. 

1 1. Where the collectors of customs (Army officers) under the mili- 
tary government in Porto Rico were required to transfer a portion 
of the funds to subsistence officers to be expended for the subsistence 
of the Army, held, that the collection, transfer, and disbursement of, 
and accountability for, these funds were under the control of the 
military commander or military governor and did not form any part 
of an appropriation made by Congress for the support of the Army. 
Such funds should not therefore be taken up on accounts current of 
disbursing officers in connection with funds from such appropriations. 
C. 6464, Dec. 12, 1898. 

I J. Paragraphs 683-684,ArmyRegulations, 1908 (690-691 of 1910), 
provide that empty barrels, boxes, crates and other packages, to- 
gether with metal turnings, scrap metal, ground bone and other 
waste products, which accumulate at arsenals, depots and military 
posts, and which are unsuitable for the miUtary sei'vice, will be 
disposed of by condemnatioji and sale. Held that the cost of pack- 
ages, etc., containing stores and suppUes procured by the Subsistence 
Department are included in the price of the contents which are 
issued or sold. As those to whom such stores are issued are entitled 
to them as articles of ration, and as those to whom they are sold 
are entitled to them by reason of purchase, the ownership in the 
package, etc., passes with the title to the contents. But where grain 
IS issued not to officers or enlisted men, but to public or private 

I See XIV Comp. Dec, 310. 



888 PUBLIC MONEY I K. 

animals that are entitled to forage, the title to the sack will not pass, 
as the grain is not issued to persons as rations. However, in case 
there is an authorized sale of grain, the title will pass. Therefore in 
those cases where the title to the package, etc., does not pass, the 
property should still be accounted for, but in other cases if sold by 
those to whom the supplies have been issued or sold the proceeds 
should not be turned into the Treasury. C. 227^8, Feh. 13, 1908, and 
Apr. 30, 1908. 

I K. Where private property of officers, soldiers or civihans has 
been stored in a Government storehouse and is unclaimed and 
apparently abandoned and the owners or their relatives or repre- 
sentatives can not be located, and a period of time in excess of 
that prescribed by local laws for the recovery of personal property 
has elapsed; or where the owners, their relatives or representatives 
fail to remove the property after being notified to do so, held the 
property may be sold at auction and the proceeds deposited with a 
paymaster.! ^_ 21533, May 21, 1907, and Aug. 31, 1909. So where 
the eft'ects of a deceased officer contained valuable historical data 
in the shape of an account of certain mihtary operations in which the 
deceased had participated, and efforts to locate relatives or repre- 
sentatives of the deceased had been unsuccessful, and a private 
person engaged in writing a history of the events recounted in the 
papers desired to use them, recommended that the papers be tempo- 
rarily transferred to him for that purpose. C. 21533, Jan. 31, 1911. 

I L. Where recruits have cast off and abandoned their civilian 
clothing to such an extent that they would be estopped from reclaim- 
ing it, there is no legal objection to the commanding officer directing 
that such clothing should be collected and sold, the proceeds to be 
apphed for the support of the general mess. C. 22763, Feh. 15, 1908. 
And where a good suit of civiHan clothing was, through error, sold as 
authorized above, lield, that the owner could properly be reimbursed 
from the general mess fund which had received the benefit of the 
sale. C. 27550, Nov. 30, 1910. 

I M. Money received at mihtary posts from the sale of garbage 
wliich is derived principally from the waste products of the company 
messes, although partly including waste products from the property 
of the United States, may be disposed of as directed by the com- 
manding officer, and the proceeds need not be covered into the 
Treasury of the United States. C. 23876, Jan. 11, 1912. 

I N. A fine paid by an Army officer in accordance with sentence of 
court-martial is pubhc money and should be deposited in accordance 
with section 3617, R. S. C. 3672, May 9, 1900. 

1 O. The body of an unidentified man was washed ashore on a 
military reservation over which the State had ceded exclusive juris- 
diction. The sum of $20 was found on the body and there were no 
expenses connected with the interment. Held that the money 
should be deposited in the Treasury as required by section 3618, 
R. S.2 C. 23692, Aug. 4, 1908. 

' If the property is considered to be of no value, it is the practice to destroy it after 
a year's storage if the owner, his relatives or representatives fails to remove it after 
being notified to do so, or after reasonable efforts the whereabouts of himself, his 
relatives or representatives can not be ascertained. 

2 The Solicitor of the Treasury concurred in the above opinion. See, also, 19 Op. 
Atty. Gen., 247. 



PUBLIC MONEY IP. 889 

1 P. The act of May 1,' 1888 (25 Stat. 112), relating to the Military 
Acaderay, provided that ' ' all funds arismg from the rent of the hotel 
on the academy grounds and other incidental sources, from and after 
this date, be, and are hereby, made a special contingent fund, to be 
expended under the supervision of the superintendent of the acad- 
emy," etc. Held that the general words "and other incidental 
sources" in the above act should be construed to apply to funds aris- 
ing from an incidental source ^ and not embracing funds which the 
law expressly requires to be disposed of m another manner. There- 
fore such words would not cover the proceeds of a sale of condemned 
property purchased from appropriations for the Military Academy, 
and such proceeds should be disposed of as required by section 3618, 
R. S. C. 27201, Aug. 31, 1910. 

II A. Any officer of the United States "having any public money 
intrusted to him for disbursement" is a "disbursmg officer" within 
the meanmg of sections 3620 and 5488, R. S. Held, therefore, that 
medical officers intrusted with moneys for disbursement under general 
orders 116 and 136, Adjutant General's Office, 1898, relating to the 
expenditure by medical officers of the appropriation " Subsistence 
of the Armv" for the diet of enlisted men, were such disbursmg offi- 
cers. C. 6269, Nov. 7, 1898. But held that the moneys received by 
the quartermaster m charge of a United States transport from parties 
traveling thereon for meals furnished them can be applied, under 
section 3618 R. S., and the act of March 3, 1875 (18 Stat. 410), to 
the purchase of fresh supplies.^ C. 501^.8, Oct. 6, 1898. 

II B 1. A paymaster's responsibility for public funds intrusted to 
him contmues until such funds have been disbursed or possibly until 
the loss of them can be fixed on another officer or soldier and stopped 
against his pay. If a paymaster loses a portion of his funds, he is not 
thereby relieved of his responsibility as to the money lost even though 
the loss be through no fault of his owa.^ C. 2304, May 19, 1896, 

II B 2. A disbursmg officer who pays out money of the United 
States upon vouchers that are forged will m general make himself 
liable for the amount paid. Thus where such an officer paid out pub- 
lic money upon transportation requests, addressed to a railroad com- 
pany and accepted oy it, which requests had been fraudulently 
prepared by a quartermaster's clerk who had forged the name of the 
quartermaster thereto, held that the disbursmg officer was responsible 

* See Appropriations XI. 

2 See Dig. Second Comp. Dec, vol. 3, p. 324. 

2 In Smythe v. U. S., 188 U. S., 156, and earlier cases therein cited the rule was 
laid down that the obligation of a bond "to keep safely the public money ia absolute 
without any conditions, expressed or implied, and nothing but the payment of it 
when required can discharge the bond." The severity of this rule is mitigated by 
the pro\dsions of sec. 1062, R. S., which authorizes a paymaster, quartermaster, 
commissary of subsistence, or other disbursing officer to apply to the Court of Claims 
for relief from responsibility on account of capture or otherwise of Government fimds, 
and authorizes the court to grant relief where the loss was " without fault or negligence 
on the part of such officer." The rule as to the degree of care that should be exercised 
by such officers in order to justify the granting of relief by the court is set out in 4 Ct. 
Cls., 506; 5 id., 489; 7 id., 415; 37 id., 531. The facts in the following cases illustrate 
the practical view taken by the court: 4 Ct. Cls., 501; 5 id., 486; 7 id., 431, 512; 11 
id., 698; 15 id., 314; 19 id., 125; 21 id., 300; 25 id., 98; 37 id., 527; see I Comp. Dec, 
191. The act of Mar. 2, 1903 (32 Stat. 955), provides specially for the allowance of 
such credits for payments and for losses of funds, vouchers, and property during 
the Spanish War as the Secretary of War may recommend. 



890 iPXJBLiC MONEY II B 3. 

for the amount paid. P. 56, 208, Oct. 22, 1892. So where a forged 
transportation request was accepted by the railroad company but 
not accepted by the disbursing officers, lield that the loss should be 
borne by the railroad company.^ C. 7400, Apr. 21, 1900; 29056, Oct. 
3, 1911. 

A disbursing officer of the Army who has paid out public moneys 
upon vouchers which prove to have been false or forged is personally 
responsible to the United States for the amount of the loss ; and it is 
the usage of the Government to hold such an officer so responsible, 
however innocent of criminality he may be; the fact that he has 
acted in good faith not affecting his legal liability. Such an officer, 
further, is not entitled to call upon the Government to prosecute a 
civil suit against the party chargeable with the fi'aud, but he may 
himself initiate such a suit if he desires to do so for his own indemnity. 
R. 16, 635, Oct. 25, 1865; 28, 20, July 29, 1868; 42, Aug. 7, 1868; 
32, 423, Mar. 22, 1872. 

II B 3. Where a Government check was lost from the mail before 
reaching the payee, recommended that the incident be regarded as 
one involving a loss of public funds, and that the case be submitted 
to Congress with a view to legislation relieving the disbursing officer 
who drew the check from responsibility in connection therewith. 
C. 18853, Nov. 23, 1905. 

II B 4. The act of February 27, 1893 (27 Stat. 478), provided that 
"The Secretary of War is also authorized to arrange for the pay- 
ment of the enlisted men serving at posts or places where no pay- 
master is on duty by check or by currency, to be sent to them by 
mail or express, at the expense and risk of the United States." 
Held that the "expense and risk" referred to means the expense 
and risk of transportation. A loss occurring during transportation 
would fall on the United States, but a loss not occurring during trans- 
portation would not fall on the United States. C. 2427, July 7, 1896. 

II B 5. Paragraph 658, Army Regulations, 1908 (665 of 1910), is 
as follows: "If a payment made on the certificate of an officer as to 
the facts is afterwards disallowed for error of fact in the certificate, 
it willpass to the credit of the disbursing officer and be charged to 
the officer who gave the certificate; but the disbursing officer can 
not protect himself in an erroneous payment made without due care 
by charging lack of care against the officer who gave the certificate." 
Where an officer certified that rooms had been occupied under a 
lease for 10 days in the month of March and made out a voucher for 
ten-thirtieths of the monthly rent instead of ten thirty-firsts, Tield 
that the vouchers showed on their face the erroneous method of 
computation, and the disbursing officer made the payment "without 
due care." C. 25340, July 26, 1909. 

II B 6. Where a contractor requested the District engineer officer 
to mail him checks in payment of work by registered mail and the 

* See IX Comp. Dec, 484, holding that an officer from whom a transportation 
request was stolen, the request having been honored by the road and paid by a dis- 
bursing officer, was not chargeable with the cost of the transportation. vSo where a 
Government meal ticket was stolen and filled in and subsequently honored by a rail- 
road company, the Comptroller in an unpublished opinion of Feb. 25, 1908, held that 
as the order was not made by the Government or by anj/ officer duly empowered to 
make it there vvas no legal obligation resting upon the United States to pay for the 
meals furnished. 



PUBLIC MONEY 11 C 1. 89l 

engineer officer objected, insisting on a representative of the con- 
tractor coining to the office of the District engineer officer to receive 
and receipt for the checks, held there would be no added risk in 
sending the checks by mail as requested by the contractor, as the 
checks have no intrinsic value in themselves, but are merely the 
means of securing payment from the proi:)er depository of public 
funds. Therefore if the checks are made out to the order of the 
contractor so that they would require the indorsement of the con- 
tractor, neither the Government nor the engineer officer would 
incur additional risk in committing them to the mails. As to 
obtaining a receipt for the checks, the officer would hold the request 
of the contractor that the checks be sent by mail, and the checks 
after payment would be in the possession of the Government and 
availal)le as evidence of payment. If desired, the engineer officer 
could send a blank receipt with the checks, to be signed and returned 
by mail, and in the meantime could, if desired, have an emplo3^ee of 
his offi.ce vdtness the fact of the mailing of the checks, so that in case 
of a failure of the contractor to return the receipt as requested, 
there would be proof that the checks had been mailed. C. 19072, 
Jan. 30,1906. 

II C 1. It is weU. settled upon considerations of public policy, that 
funds ill the possession of a paymaster of the Army or other disbursmg 
agent of the United States due as pay, salary, or wages to an officer 
or soldier of the Army or other Government employee can not be 
attached in a suit instituted agamst such officer, etc., bv a private 
creditor.! R. 8, 493, May 20, 1864; 20, 413, Feb. 21, 1866; 26, 466, 
Feb. 20, 1868; 28, 47, Aug. 10, 1868; 33, 8, Mar. 23, 1872; 34, 26, 
Nov. 1, 1872; C. 1901, Dec. 1895; 2767, Dec. 28, 1896; 4887, Sept. 1, 
1898; 6103, Mar. 23, 1899. As the United States Soldiers' Home which 
was established by the act of March 3, 1851, 9 Stat. 595, is simply an 
agency of the United States, the title to the property and funds bemg 
in the United States, the above principle would apply where the 
creditor of a contractor for work at the home attempted to garnishee 
the officials of the home. _ C. 16767, Aug. 18, 1904. Where, indeed, 
the pay due has been paid over to a third person as the authorized 
agent or attorney of the party entitled to receive it, it may be attached 
by the garnishee process in the hands of such person. C. 4^87, 
Sept. 1, 1892. 

The principle is well established that money in the hands of a 
disbursmg agent of the United States is not subject to attachment in a 
suit by a creditor of a party to whom such money is due and payable. 
A military disbursing officer is therefore not empowered to paj'" mon- 
eys in his hands, due a Government contractor, to any creditor of such 
contractor, or to any person other than the contractor himself, or his 
agent or attorney or personal representative; nor can he be made 
liable to pay over any part of such moneys as garnishee in a suit 
brought against such contractor. R. 54, 514, Jan. 23, 1888; P. 63, 
292, Jan. 20, 1894. 

* Buchanan v. Alexander, 4 Howard, 20; Averill v. Tucker, 2 Cranch, C. C, 544; 
Derri'. Lubey, 1 McArthur, 187; 13 Op. Atty.Gen., 566; I Comp. Dec, 171; II id., 222. 
And the same principle is applied to moneys due from municipal corporations. Haw- 
thorn V. St. Louis, 11 Mo., 59; Burnham v. Fond du Lac, 15 Wis., 211; Wilson v. Bk. 
of La., 55 Ga., 98; Pruitt v. Armstrong, 56 Ala., 306; Boone Co. v. Keck, 31 Ark., 387. 



892 PUpLlC MONEY II C 2. 

II C 2. A creditor of a Government contractor, to whom the Gov- 
ernment owes a balance, can not attam the object of a foreign attach- 
ment by bringing suit against the contractor, and joming with him, 
as defendants, the United States, as also the officer of the Army who 
executed the contract, and praying judgment against the United 
States, or for an order of court upon the officer to pay over the 
amount claimed. An individual can not be allowed so to control 
the operations of the Government.^ P. ^0, 251, Apr. 18, 1890. 

II C 3. A general service clerk received from a paymaster of the 
Army, in payment of his monthly pay, a check upon a national bank, 
which was a United States depositary. On presentation the bank 
retained the check and refused payment on the ground that the 
county sheriff had levied an attachment on all the property of the 
payee in the bank. Held that such refusal was unauthorized. The 
pay due was public money in the hands of the depositary, and 
could be paid only to the payee of the check or his order. P. 5^, 361, 
July 19, 1892. 

II C 4. Wliere a subcontractor claimmg a lien on the money due 
from the United States to the contractor filed with the Government 
notice of the alleged lien, lield that in the absence of a provision in 
the contract specifically providing for retaining money due the con- 
tractor untU he should have settled other claims agamst liim,^ settle- 
ment should be made with the contractor without regard to the notice 
of lien. C. 20947, Jan. 3, 1912. 

II C 5. A subcontractor can not, by injunction or otherwise, 
restram the Secretary of War, or a military officer, from paymg the 
entire consideration of the contract, or so much as may be due and 
payable, to the contractor. There is no privity of contract between 
the Government and a subcontractor ^ and he has no legal claim 
whatever upon the United States for any part of the contract money. 
He must look to the principal contractor for the pavment of any- 
thmg that may be due him. R. 52, 194, May 19, 1887; C. 746, Dec. 
13, 1894. 

II C 6. It is settled that a State court can have no authority to 
enjoin the United States judiciary from executing their judgments, 
or from proceeding with actions of law pending before them.* Simi- 
larly lield that a State court was not empowered to enjoin an executive 
department or officer of the United States from performing the con- 
tracts of the United States, and, accordmgly that an injunction issued 
in a suit in a State court prohibiting an officer of the Army, charged 
with the duty of paying to a contractor a certain sum of money due him 
under a contract between hun and the United States, from paying said 

1 Moreover, when suit is initiated against the United States, the plaintiff is required 
to proceed according to the provisions of sees. 4, 5, and 6 of the act 'of Mar. 3, 1887 
(24 Stat. 506), and must duly serve a copy of the petition upon the proper United 
States district attorney, as notice to appear and defend the interests of the United 
States, and mail a copy to the Attorney General, etc. — a procedure which had not been 
followed in this case. 

•' XVII Comp. Dec, 80. 

3 See XVI Comp. Dec, 426. 

«McKim2). Voorhies, 7 Cranch, 279; Duncan t;. Darst, 1 How., 306; City Bk. of N. Y. 
V. Skelton, 2 Blatch. 26; Riggs -d. Johnson Co., 6 Wallace, 166; United States v. Council 
of Keokuk, id., 514; Mariposa Co. v. Garrison, 26 How. Pr., 448; English v. Miller, 
2 Rich. Eq. 320; Chapin v. James, 11 R. I., 86. 



PUBLIC MONEY II D. 893 

sum, would legally and properly be disregarded by such officer.' R. 
42, 128, Jan. 22, 1879. _ '^ 

II D. It is in accordance with the usage of the military service, as 
well as the general practice under existing laws, for an officer of the 
Army charged mth the disbursement of pubUc funds to pursue in his 
own name and representative capacity the proper legal remedies when 
such funds are illegally appropriated or withheld by third parties. 
This official function of the officer can not properly be imposed upon 
the head of his department. The Secretary of War can not be 
required to institute the legal proceedings, nor would his doing so 
make the claim an}^ more a public claun of the United States than it is 
as prosecuted by the disbursing officer in his official capacity. Thus 
advised, in the case of such an officer, a portion of whose public funds 
were in the possession of a bank, as an authorized public depository, 
at a time when the same stopped payment and went into insolvency, 
that the officer should file and prove his claim before the register in 
bankruptcy and prosecute the collection of the same so far as neces- 
sary and practicable; and further, that a due and reasonable dihgence 
on his part in pursuing the legal measures open to him for realizing 
the amount for which he was officially responsible would furnish the 
strongest support to any application, which he might in future prefer, 
to be discharged from liability for any loss to the United States result- 
ing from the failure of the depository. R. 35, 365, May 7, 1874. 

II E, A disbursing officer deposited in a bank at Denver, Colo., for 
collection a check drawn on the treasurer of the Philippine Islands. 
The bank made a charge of $30.11 as exchange. Held that the dis- 
bursing officer was not entitled to take credit in his account for the 
above sum required to be paid as exchange. C. 18853, Aug. 21, 1907. 

III. Section 3620, R. S., pro^ddes that a disbursing officer, having 
on deposit in a public depository pubhc moneys intrusted to him for 
the purpose of aisbursement, shall ' ' draw for the same only in favor 
of the persons to whom payment is made." Where, upon the order of 
a party to whom the United States was indebted in a certain amount, 
a disbursing officer made payment of the ampunt to a firm to which 
such party was indebted — advised that such payment was clearly in 
contravention of the statute. P. 53, 239, Apr. 29, 1892. 

IV. Upon construing section 1766, R. S., in connection with the 
original act — that of January 25, 1828 (4 Stat. 246), entitled "An act 
to prevent defalcations on the part of the disbursing agents of the 
Government" — held that such section, though expressed in somewhat 
general terms, properlv apphed onlv to bonded disbursing officers.^ 
P. 61, 167, Aug. 22, 1893. 

' See the subsequent confirmatory opinion of the Attorney General in this case, in 
16 Op., 257. In an earlier opinion of the Solicitor General (15 Op., 524), it was held 
that as a State can not by its judicial process legally obstruct or indirectly interfere 
with the operations of the United States Government, a State court could not be auth- 
orized to enjoin a contractor with the United States from receiving payments under 
his contract and thus hinder him in the due performance of the same. 

2 But see the general provision of the Army appropriation act of June 16, 1892 (27 
Stat. 177), which provided that "the pay of officers of the Army may be withheld 
under section seventeen hundred and Hixty-six of the Revised Statutes on account of 
an indebtedness to the United States admitted or shown by the judgment of a court, 
but not otherwise unless upon a special order issued according to the discretion of the 
Secretary of War." 



894 PUBLIC MONEY V. 

V. Congress, in appropriating money for the new State, War, and 
Navy Building, has provided that the amounts shall ''be expended 
under the direction of the Secretary of War." While the Secretary 
would thus be authorized to commit the disbursing of the funds 
employed to any proper person, yet advised, in view of the policy of 
the law as expressed in section 1153, R. S., that the Secretary would 
properly designate as the disbursing agent the engineer officer engaged 
m superintending the work, especially since — as provided in said sec- 
tion — the duty of disbursing would thus be performed without any 
charge to the United States. R. 41,283, June 22, 1878. 

VI. A paymaster drew his check in favor of a discharged soldier 
for the amount due him on final settlement. The paj^ee indorsed the 
check in blank, and the paymaster then, according to a common prac- 
tice, subindorsed it, adding his official designation, merely for the 
purpose (though the indorsement did not so state) , of identifying the 
signature of the payee. The writing in the body of the check was 
then removed or altered and the check filled in for a very much greater 
amount. The check thus raised was on the next day presented to and 
paid by the Assistant Treasurer at New York. Hetd that, while, in 
the hands of a honajide indorsee, the liability of the paymaster would 
have been that of a regular indorser, parol .evidence not being then 
admissible to show that he indorsed merely for identification,^ yet the 
loss in this case legally fell upon the assistant treasurer whose hability 
was the same as that of a bank which pays a forged check in a case 
in which the forgery has not been facilitated by the negligence of the 
drawer. 2 P. 53, 312, May, 1892. 

yil. HeU that the act of April 20, 1874 (18 Stat., pt. 3, p. 33), 
entitled ''An act to provide for the inspection of the disbursements 
of appropriations made by officers of the Ai'my," applied only to the 
inspection of disbursements of moneys appropriated by legislation of 
Congress. P. 48, 184, July 9, 1891.' 

VIII. Section 3651, R. S., prohibits the exchange of funds by any 
disbursing officer or agent of the Government. Held that an ex- 
change by a disbursing officer of funds appropriated for the pay of 
the Army for Philippine currency at the market rate to enable him 
to pay in that currency creditors who desired to receive it in satisfac- 
tion of the obligation of the United States, would not be an ex- 
change forbidden by this section. C. 17604, Feb. 28, 1905. 

IX. After the establishment of a new currency for the Philippine 
Islands by the act of March 2, 1903 (32 Stat. 952), the question arose 
as to the payment of debts due the United States in the Philippine 
currency and the payment by the United States of its own debts in the 
same currency, held thsit under sections 3473, 3474, 3475, and 3476, 
R. S., all funds received by disbursing officers of the United States 
from the sale of stores and other public property must be in United 
States currency, and that under sections 3617, 3618, 3651, 3652, and 
3692, R. S., the accounts of disbursing officers must be kept in United 
States currency, but there is no objection to the payment of a debt of 
the United States in any local currency which the creditor was willing 
to receive. For instance, if an employee of the United States is 
employed at the rate of $100 per month he is entitled to demand his 
pay in United States currency. If he desires to be paid in Mexican 

' Daniel on Negotiable Instruments, vol. 1, p. 719, and cases cited. 
^ Byles on Bills (Sharswood's edition), 337, and cases cited. 



PUBLIC MONEY PUBLIC PROPEKTY : SYNOPSIS, 895 

dollars there is no objection to his being paid in such number of 
Mexican dollars as are equal on the day of payment to SI 00 in gold. 
So, too, a disbursing officer may make a contract payable in Mexican 
dollars or other foreign currency, but the account must be stated in 
legal tender of the United States at the market quotation of such 
currency on the day of pajnnent. With the above exceptions, the 
accounts of disbursing officers must always be kept in United States 
currency. C. 15316, Dec. 23, 1903. 

X. Paragraph 687, Army Regulations of 1904 (694 of 1910), pro- 
vided that damage to public property for which an officer was re- 
sponsible would be 'deducted ' from his monthly pay. Held that the 
regulation was intended to cover cases where the officer did not 
voluntarily pay the amount of the damage, but that where an officer 
was willing to pay the amount of the same it should be received from 
him and deposited in a Government depository to the credit of 
miscellaneous receipts and the officer relieved from his accountability. 
C, 2213 J^, Oct. 1, 1907. 

XI. Sections 3617 and 3618, R. S., have no application until the 
money has been received to the use of the United States. Therefore, 
held that a provision in a lease of Government property that the 
lessee might make necessary repairs and have the cost of the same 
credited on the rent was legal. C. 29129, Oct. 18, 1911. So, held, 
that a contract might be made between the commanding officer of a 
post and a private laundry whereby the laundry should launder at a 
reduced rate articles belonging to the United States as well as articles 
of offiqers and enlisted men and in consideration thereof should be 
furnished fuel and water by the Government at cost price. C. 1494-S, 
July 15, 1903. 

CROSS REFERENCE. 

See Militia X to XI. 

Public property. 

Blank receipts unauthorized See Pay and allowances IBS. 

Can not be advanced See Contracts XII. 

Can not be given to flood sufferers See Public property I A 5. 

Loss of. See Discipline XII A 12 b. 

Misapplication of See Pay and allowances I C 6 b. 

Misappropriation of See Discipline II D 16 a. 

Pay- and allowances I C 6 b 
Sources of See Army I G 3 b (2) (a) [3] [d]; d (8) (6). 

Discipline XVII A 4 g (1). 

Laws II A 1 c. 

Pay and allowances I C 6 b (5); 7 a 
. . (l);mClf(l);g(l);D2. 

Public property IX A 3. 

War I C6c(3). 

PUBLIC PROPERTY. 1 

J. IN GENERAL Page 901 

A. Disposition Must be Authorized by Congress Page 902 

1. Required for the grant of any interest in public property. 

2. Distinction between license and grant of interest Page 90S 

3. Applies to both personal and real property Page 904 

4. Applies to exchanges as well as other dispositions Page 905 

a. Sale to State, or exchange, of arms, etc. 

b. Issues of arms and ammunition to protect public money and 

property. 

' Prepared by Mr. Lewis W. Call, chief clerk and solicitor, office of the Judge 
Advocate General, U. S. Army. 



896 PUBLIC property: syistopsis. 

I. IN GENERAL-Continued. 

A. Disposition Must be Authorized by Congress — Continued. 

5. Issues to sufferers Page 906 

a. Civilian employees in hospital. 

6. Finder obtains no title. 

B. Transfer, etc., op Property Between Bureaus and Departments. 

1. Transfer or exchange of lands Page 907 

C. Loan of Tents, Flags, etc Page 908 

D. Choses in Action. 

E. Custody of, in District of Columbia. 

F. Accountability for. 

1 . For transportation requests , . Page 909 

2. For loss as gratuitous bailee. 

3. Fixing accountability — Surveying officer. 

a. Swearing of, and witnesses. 

b. May receive affidavits , Page 910 

4. Relief from accountability. 

G. Donation of Personal Property, Acceptance of. 
n. LAND. 

A. Purchase of, Must be Authorized by Law (Section 3736, Revised 

Statutes). 

1. Term "purchase " includes donation, etc Page 911 

2. Statutory authority for, must be clear. 

a. WTiere appropriation is insufficient. 

b. Where appropriation for monument does not authorize pur- 
chase Page 912 

3. By deed, formal acceptance not necessary. 

a. After delivery, etc., cancellation not authorized. 

4. Authority to condemn must be express. 

a. Must precede suit Page 91S 

b. Whether in State or United States court. 

c. Condemnation for Gettysburg battlefield. 

5. Title for joint use where statute calls for "title." 

6. Title must be approved by Attorney General. 

a. Abstract of title, survey, etc , Page 914 

b. Certificate as to liens. 

(1) Lien for purchase money. 

(2) Lien of judgment, appealed from 

c. Title for limited use , Page 915 

^ (1) Subject t® condition subsequent. 

d. Deposit, in condemnation Page 916 

e. When title vests. 

f. Where error as to area. 

g. Subject to right to cut timber. 

h. Where easement only is acquired Page 917 

7. Title under settlement of suit. 

8. Temporary forts in emergency with consent of owner. 

B. Disposition Must be Authorized by Law. 

1 . By statute without deed Page 918 

2. By deed under authority of statute. 

3. No title against United States by adverse possession. 

a. Protection of possession of United States Page 919 

b. Process respecting title, 

C. Boundaries on Streets. 



PUBLIC PROPERTY : SYNOPSIS. 897 

n. LAND— Continued. 

D. Boundaries on Waters Page 920 

1. Natural accretions. 

E. Buildings, Generally Property or Owner of Soil. 

1. On land occupied jure belli. 

2. Temporarj' buildiags, removal of Page 921 

3. Buildings ereeted without authority. 

4. Where reserved iu contract for sale. 

F. Trees, the Property of the Owner of Soil. 

1. Cutting for use of garrisons. 
in. MILITARY RESERVATIONS. 

A. Reservation, Meaning of. 

1. Authority of President , Page 922 

2. Order inoperative as to private lands Page 923 

3. Order withdraws lands from jurisdiction of Interior Department. 

4. Within national park. 

5. In Porto Rico and in Philippine Islands. 

B. Not Subject to Location for Mines Page 924 

C. Not Subject to Location of Railway Through "Public Lands." 

D. On Indian Reservation, Subject to Rights of Indians. 

E. Error in Location of Post. 

F. Disposition of Military Reservations. 

1. Authority of Congress required. 

2. Conflicting claims of private parties Page 925 

3. Under act of July 5, 1884. 

4. Grant to municipal corporations (act of Mar. 3, 1893). 

5. Sale under special act. Expenses of sale. 

6. In the Philippme Islands Page 926 

G. Boundary on Tide Waters 

1. In States. 

2. In Territories. 

H. Squatters or Trespassers. 

1. Removal by force if necessary. 

2 . Improvements, removal of, valuation Page 927 

3. Hay or wood cut by trespassers not to be removed. 

4. Removal where on reservation for injurious purposes. 

5. Business on reservation. 
IV. CEMETERIES. 

A. National Cemeteries. 

1. Acquisition of. 

a. Law authorizing. 

(1) Condemnation when authorized Page 928 

(2) Effect of appraisement. 

b. For volunteer homes. 

2. Right of way for roadway to. 

a. Restriction as to railways on. 

b. Police jurisdiction over. 

c. Restriction as to repairs. 

3. Superintendent of. 

a. Status of Page 929 

b. Authority to make arrests. 

c. To enforce rules regarding speed. 
93673°— 17 57 



898 PUBLIC pkopeety: synopsis. 

ly. CEMETERIES— Continued. 

A. National Cemeteries — Continued. 

4. Persons entitled to burial. 

a. Superintendent Army Nurse Corps. 

b. Indigent of Civil and Spanish Wars Page 930 

c. Revenue-Cutter Service. 

B. Confederate Dead, Northern Prisons. 

1 No authority to permit interment of others. 
V. JURISDICTION— GENERAL DISCUSSION Page 931 

A. Not Incident to Ownership by United States. Page 933 

B. Retained on Admission of State. (See Public Property, V A.) 

C. Acquired by. 

1. Purchase with consent of State. (See Public Property, V; V A; 

VEla.) 

2. Direct cession by State. (See Public Property, V; V E 1 a.) 

D. How Lost. (See Public Property, V; V A; V E 1 a.) 

1. By abandonment or relinquishment of reservation Page 934 

a. Not lost by grant of right of way for railway 

E. Conditions and Restrictions. 

1. Purchase with consent. 

a. For purpose specified in Constitution gives exclusive juris- 

diction. 

(1) Reservation of right to serve process Page 935 

(2) Reserv^ation of concurrent jurisdiction not acceptable. 

b. For other purposes. (See Public Property, V; V E 1 a.) 

(1) May be accompanied with limitations. (See Public 

Property, V.) 

(2) Questionable whether exclusive jurisdiction is desir- 

able. (See Public Property, V.) 

c. Construction of cession of "exclusive legislation" with the 

reservation of "concurrent jurisdiction. " Page 936 

d. Construction of cession of jurisdiction with proviso for opera- 

tion of State laws over premises. 

e. Construction of term "purchase." 

2. In case of direct cession. 

a. Cedes only so much as is expressed. (See Public Property, 

V; VEla.) 

b. Reservation of right to tax persons and corporations. (See 

Public Property, V; V E 1 a.) 

c. Of concurrent jurisdiction. (See Public Property, V; 

VE 1 a.) 

d. Cession not retroactive unless so worded Page 937 

F. Effect of Cession. 

1. Where exclusive. 

a. State laws not operative. 

(1) Prohibition laws. 

b. Removes territory from political and legal jurisdiction of 

State. 
(1) Withdraws persons and property thereon from civil 
and criminal jurisdiction of State. (See Public 
Property, V F 1 b.) 

(a) From liability to State taxation. (See Public 
Property, V F 1 b.) 



PUBLIC pkopekty: synopsis. 899 

V. JURISDICTION— GENERAL DISCUSSION— Continued. 

F. Effect of Cession — Continued. 

1. Where exclusive — Continued. 

b. Removes territory from political and legal jurisdiction of 
State — Continued . 

(2) Deprives persons thereon of school and other privi- 

leges. (See Public Property, V F 1 b.) 

(3) Deprives State officers of jurisdiction within reser- 

vation Page 9S8 

(a) To hold inquests thereon. (See Public Prop- 

erty, V F 1 b (3.) 

(b) To enforce quarantine regulations. (See Public 

Property, V F 1 b (3.) 

(c) To require vital statistics. (See Public Prop- 

erty, V F 1 b (3.) 

(d) To control public easement for highway. (See 

also Public Property, V F 1 b (3.). . Page 939 

(e) To require license for business thereon. (See 

Public Property, V F 1 b (3.) 
(/) To regulate marriages. (See Public Property, 

VFlb(3.) 
(g) To administer effects thereon of deceased per- 
sons. 
(h) To serve process unless right reserved . Page 940 

2. Where not exclusive. 

a. Reservation of right to tax persons and corporations. (See 

Public Property, V E 1 a.) 

b. Reservation of concurrent jurisdiction. (See Public Prop- 

erty, V E 1 a (2.) 

G. Jurisdiction Required by Section 355, Revised Statutes. 

1. Construction of language "other public building of any kind what- 

ever. " 
a. For park purposes, etc Page 941 

2. Does not preclude purchase prior to cession. 

3. Cession required before expenditure of appropriation. 
H. Law Operative Within Reservations. 

1. AATien jurisdiction ceded. 

a. Laws, other than criminal, continue. 

b. Criminal laws of United States Page 942 

2. In Territories. (See Public Property, V H 1 a.) 

a. Territorial laws, civil and criminal, continue. (See Public 

Property, V H 1 a.) 

b. Process of Territorial courts. 

c. Local government of District of Columbia Page 943 

VI. RIGHTS OF WAY. 

A. Rights of United States LTnder Grant. 

1. Authority of municipal officers. 

B. Over Public Property — Authority of Congress Required. 

1. A State can not authorize Page 944 

2. Formal acceptance not necessary. 

3. Selection of location where grant indefinite 

4. Requirement as to joint use of tracks. 



900 PUBLIC property: synopsis. 

VI. RIGHTS OF WAY— Continued. 

C. Public Rights — Existing When Lands Required. 

1. Statute authorizing Secretary of War to grant. 

D. Irrigation Ditches, Law as to Water Rights. 

1. Approval of location. (See Public Property VI D.) Page 945 

2. Where lands acquired subject to right of way. 

E. For Railways — Northern Pacific Railroad Page 946 

1. Railways through water-reserve lands. 
Vn. LEASE. 

A. To THE United States. 

1. Assignment by lessor not within section 3737, Revised Statutes. 

2. Buildings erected on leased land. 

3. Construction of term "month." Page 947 

4. Option for renewal. 

5. Renewal by formal contract. 

6. Where property is occupied after expiration of term. 

7. Where rent is claimed adverse to lessor. 

B. By the United States. 

1. On Muskingum River— Act of August 11, 1888 (25 Stat. 417). 

a. Acceptance of rent from assignee ratifies assignment. Pag'e 9-^5 

b. Termination for nonpayment of rent. 

2. Under act of July 28, 1892 (27 Stat. 321). 

a. Exception as to mineral lands. 

b. Discretion as to amount of rent Page 949 

c. Commencement of term. 

d. Revocation of lease. 

e. Disposition of rent. 

Vra. LICENSE, GENERAL DISCUSSION Page 950 

A. Nature of Page 952 

1. No usufructuary interest. 

2. Not assignable or transferable. 

a. Issue of new license to assignee. 

3. Will not authorize taking of property Page 958 

4. Can not authorize permanent changes or damage to property. 

a. Can not authorize waste. 

b. Can not authorize use of mineral lands. 

c. Can not authorize permanent structures. 

d. For use of surplus water for irrigation Page 954 

e. To receive water through Government system. 

5. For landing of ferry on reservation Page 955 

6. For use of personal property. 

B. Instances Where Licenses Have Been Granted. 

1. For post office Page 956 

C. Where United States Owns Fee Subject to Public Easement. 

D. Where United St.vtes Has a Special Interest Only. 

E. Revocation and Removal of Property Page 957 

1. Change of location of railroad track. 
IX. SALES. 

A. Military Stores — Section 1241, Revised Statutes. 
1. Meaning of term "military stores." 
a. Containers of supplies. 



PUBLIC PROPERTY I. 901 

DC. SALES— Continued. 

A. Military Stores— Section 1241, Revised Statutes— Continued. 

2. Manner and terms of sale. 

a. Must 1 e condemned as damaged or unsuitable Page 958 

(1) Unsuitable where not adapted for use. 

(2) Unsuitable by reason of situation. 

(3) Matured or fallen timber or driftwood Page 959 

(4) Timber, etc., in clearing land. 

b. May be sold on credit. 

c. Employment of auctioneer. 

d. WTiere property is returned under contract. 

e. Can not be exchanged. (See Public Property I A 4.) 

f. Use, etc., of condemned property. Page 960 

3. Disposition of proceeds of sales. (Sec. 3618, R. S.) 

a. Property not subject to section 3618, Revised Statutes. 

4. Property not under section 1241, Revised Statutes. (See, also. Nav- 

igable Waters, X F and X F 3.) 

B. Of Arms, Clothing, etc., by Soldiers. 

1. Seizure of arms sold. 

2. Seizure of clothing sold Page 961 

(As to title. See Pay and allowances: II A 3 a (4) (a) 

I. The Constitution — Article IV, section 3, paragraph 2 — provides 
that "the Congress shall have power to dispose of, and make all 
needful rules and regulations respecting, the territory or other prop- 
erty belonging to the United States." The scope of this provision 
is most comprehensive; the authority conferred thereby upon the 
legislative branch of the Government being held to extend from the 
formation of a Territorial Government to the matter of the sale of a 
small amount of personalty. That neither land nor any interest 
in land of the United States can be sold or otherwise disposed of by 
the head of an executive department or other executive official or 
by a military officer, without the authoritv of Congress, is settled 
law.i R. 7, 40/^, Mar., 1864; 22, 135, July, 1866; SO, 605, Aug., 
1870; 35, 307, Apr., 1874; 4^, 283, May, 1879; 54, 609, Feb., 1888. 
In the absence of such authority, the lands of the United States, 
whether held by original proprietorship, or acquired by purchase or 
gift, or by conquest, cannot, even for a purely benevolent or religious 
purpose, be given away any more than they can be transferred for a 
valuable consideration. R. 39, 337, Dec, 1877. Nor, in the absence 
of legislative authority, can the Secretary of War authorize the use of 
Government land for street purposes. C. 3864, Feb., 1898; 7891, 
Mar. 31, 1900; 7959, Mar. 31, 1900; 17478, Jan. 31, 1905. Nor 
(without such authority) can they be conveyed temporarily by lea^e, 

^ This fundamental rule of our public law is expressed by Attorney General Hoar 
(13 Opins. 4G), as follows: "I am clearly of opinion that the Secretary of War cannot 
convey to any person any interest in land belonging to the United States, except in 
pursuance of an act of Congress expressly or impliedly authorizing him to do so." 
And see United States v. Mcoll, 1 Paine, 646 (Fed. Cas., 15,879); Seabury v. Fields, 
McAllister (Fed. Cas., 12574), 1^- United States •;;. Hare, 4 Sawyer, 653, 669 (Fed. Cas., 
15303). See also 29 Op. Atty. Gen., 272, to the effect that the title to a school build- 
ing in Petersburg, Alaska, purchased from the "Alaska fund " could not be transferred 
from the Government to the town of Petersburg, except by an act of Congress. 



9Q2 PUBLIC PROPERTY I A. 

whether for a short or long term.^ R. 32, 2, May, 1871; 39, 33$, 
Dec, 1877; 42, 230, Mar., 1879; C. 10819, July 13, 1901; 12^97, Apr. 
24, 1902; 13102, Aug. 9, 1902; 13757, Dec. 6, 1902; 14360, Apr. 1, 
1903; 14454, Apr. 17, 1903; 15286, Oct 6, 1903; 16062, Mar. 15, 1904; 
19140, Feh. 5, 1906; 19896, June 16, 1906: 21384, Apr. 13, 1907; 
27466, Nov. 9, 1910; 11131, Oct. 11, 1901. 

I A. As, under the resolution of annexation of Hawaii "absolute 
fee and ownership of all public Government, or Crown lands" vested 
in the United States, which resolution provided further that Con- 
gress would "enact special laws for the management and disposition 
of such lands," lield that the continued disposition of such lands by 
the Territorial Government of Hawaii was unauthorized.^ C. 6488, 
May 27, 1899; 7359, Dec. 1, 1899. 

1 A 1. Nor, without authority from Congress, can an executive 
department or officer convey away any usufructuary interest in land of 
the United States. Thus it has been repeatedly held by the Judge 
Advocate General that the Secretary of War (or a military com- 
mander) was not empowered, of his own authority, to grant a right 
of way over a military reservation to a railroad company or other 
corporation.^ R. 31, 237, Mar., 1871; 34, 197, 470, Mar. and Sept., 
1873; 35, 554, Aug., 1874; 36, 207, Jan., 1875; C. 24I, Aug., 1894. 
And such rights when given by Congress can be exercised only 
within the terms of the grant. Thus where by an act of Congress 
there was granted to a railroad company a limited and defined right 
of way across a military reservation (occupied by a military post), 
held that the company was authorized simply to construct a track 
or roadway, and was not empowered to put up depots, stock yards, 
cattle pens, or other erections upon the land, or to appropriate land 
otherwise than for the roadway.* R. 4I, 214, Apr., 1878; 42, 187, 
Mar., 1879. So lield that the Secretary of War could not, of his own 
authority, grant, in consideration of the payment of toll to the 
United States, a right of way over a bridge belonging to the United 
States. R. 31, 136, Jan., 1871; 38, 4I, Apr., 1876^. So held that the 
Secretary could not legally grant to a company or individual the right 
to erect and maintain for an indefinite period a hotel on the military 

^ See Friedman v. Goodwin, 1 McAllister, 148, where a lease made, by the post 
commander at San Francisco, of a part of a "Government reserve," though approved 
by the military governor of the then Territory and also by the Secretary of the Inte- 
rior, was held void because not authorized by Congress. The court declares the 
"utter impotency of any attempt by an officer of the Government to alien any land, 
the property of the United States, without the authority of an act of Congress, " 
adding that "the President with the heads of the departments combined" could not 
effect such an object. And see 4 Opins. At. Gen. 480; 9 id. 476; 13 id. 46; United 
States V. Hare, 4 Sawyer, 670-1. In the last case the court says: "The Secretary of 
the Treasury cannot execute or approve of a lease of any property belonging to the 
United States without special authoritv of law." 

But see now the act of July 28, 1892 (27 Stat. 321), which gives the Secretary of 
War authority to lease for a period not exceeding five years and revocable at any 
time, public property under his control (except mineral and phosphate lands), not 
for the time required for public use. 

2 Following this opinion an Executive order was issued on Sept. 11, 1899, setting 
aside all sales made since the adoption of the resolution of annexation. 

^ In numerous statutory enactments such a right has been expressly given by Con- 
gress as the only authority competent for the purpose. 
* See this opinion affirmed by the Attorney General in 14 Op., 135. 



PUBLIC PROPERTY I A 2. 908 

reservation at Sandy Hook.^ R. 38, 351, Nov., 1876. So lield that 
the Secretary would not be authorized to transfer a lot belonging to 
the United States in Washington to the Commissioners of the District 
of Columbia for the erection orf a hospital. R. 36, 668, Sept., 1875. 
So held that neither the Secretaiy oi War nor a department com- 
mander could grant to an individual or individuals the exclusive 
right to use for an indefinite period certain water power belonging 
to the United States {R. 41, 136, Feh., 1878); nor the exclusive right 
to mine the soil of a military reservation for a certain term of years 
(R. Jf.1, 37, Nov., 1877); nor a similar right to make and maintain 
for an indefinite period ditches through a portion of such a reserva- 
tion for the purpose of irrigating the lands of private parties {R. 
38, 232, Aug., 1876) ; nor the right annually to enter upon and occupy 
a military reservation and cut and possess the hay crop growing 
thereon^ {R. 4^, 128, Jan., 1879); nor the right permanently or 
indefinitely to occupy and use a portion of a reservation for a burying 
ground. R. 39, 337, Dec, 1877; C. 10720, June 26, 1901; 19020, 
Jan. 15, 1906; 19254, Feh. 27, 1906; 19482, Apr. 6, 1906; 21940, 
Aug. 17, 1907; 11886, Jan. 13, 1902; 16827, Aug. 31, 1904. 

I A 2. Held, however, that a distinction was to be observed between 
a grant of a usufructuary interest in land ana a revocable license, not 
invoU^ing a transfer of such an interest.^ R. 33, 657 , Jan., 1873; 34, 
196, Mar., 1873; 43, 278, Apr., 1880. Thus lieU that the Secretary of 
War would be authorized to permit a telegraph company to erect 
posts upon a military reservation and attach to the same telegraph 
wires, subject to their being removed at the will of the Government 
if found to interfere with the purposes for which the reservation 
was established. R. 38, 591, May, 1877. So held that a municipal 
corporation might legally be permitted by the Secretary of War to 
lay water pipes in the soil of the arsenal grounds at Springfield, Mass., 
the same being equalJy for the benefit of the miiitaiy authorities and 
the citizens, and subject to removal at the will of the Government. 
R. 86, 653, Aug., 1875. And held that a post trader might legally be 
licensed by the Secretary of War to erect the buildings necessary for 
his busmess upon the 1 md of the post for which he was appointed. 
R. 33, 453, Oct., 1872; 35, 78, Dec, 1873. But held that the Secretaiy 
of War was not empowered to accede to the application of an indivi- 
dual to establish a lerry across a river within the limits of a military 
reservation, where what was asked was not a mere license revocable 
at the will of the Secretary but a permanent franchise and grant of 
an exclusive usufructuary interest in the premises, including even 
the right to charge tolls to the United States. R. 38, 564, Apr., 1877; 

* See confirmatory opinion of the Attorney General in 16 Op,, 205. In this case 
there was the further objection that the State of New Jersey, in ceding to the United 
States jurisdiction over the premises, by deed of Mar. 10, 1846, had expressly 
declared that the grant was for military purposes"; adding, "and the said United 
States shall retain such jurisdiction so long as the said tract shall be applied to the 
military or public purposes of the said United States, and no longer." 

'"' A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. 
Cls., 255. 

^ See this distinction recognized in opinions of the Attorney General of Oct. 1, 
and Nov. 22, 1878 (16 Op. 152, 205), in the foimer of which it was held that the 
Secretary of the Navy was not empowered to authorize the city of Chelsea, Mass., to 
continue one of ita main sewers through the grounds of the United States Naval 
Hospital. Seo 14 Op. Atty. Gen., 125. 



904 PUBLIC PKOPEETY I A 3. 

39, 457, Mar., 1878; 1^2, 454, Bee, 1879. And similarly JieTd in a 
case of an application to be permitted to erect and maintain a 
permanent bridge across a river forming a boundary of a military 
reservation, one end of which was to be built upon the soil of the 
reservation; the application contemplating not a mere license 
revocable at the will of the Government, but a permanent right of 
property in the bridge involving an easement in the land. R. 43, 
167, Jan., 1880. Also similarly Jield where the application was to 
bore for gas on a militaiy reservation and for the exclusive privilege 
of piping and disposing of the same, if found in paying quantities. 
C. 285, Sept., I894. Z' 

I A 3. The provision of the Constitution in regard to the dispo- 
sition of public property applies to personalty equally as to realty. 
Thus no executive department or officer can be empowered, except 
by the authority of Congress, to dispose of personal property of the 
United States.^ R. 30, 605, Aug., 1870; 38, 11, Dec, 1875; C. I48., 
Aug., 1894; 1299, May, 1895; 3555, 3679, Oct. and Nov., 1897; 5008, 
Sept., 1898. So held that the Secretary of War would not be author- 
ized, in the absence of enabling legislation, to sell or negotiate the 
bonds or promissory notes made to the United States by certain 
railroad companies, in consideration of rolling stock, &c., sold and 
transferred to the same. R. 30, 605, Aug., 1870. And lield that 
the fact that certain valuable public property was perishable and 
liable to waste was not legally sufficient to justify the sale in the 
absence of statutory authority. R. 28, 479, Apr., 1869. Held that 
the ''Cavalry Tactics," a work prepared under the orders of the 
Secretary of War by a board of officers, was the property of the 
United States, and therefore could not, without the authority of 
Congress, be disposed of to a bookseller with a view to its publication 
and sale by him on his private account. R. 35, 264, Mar., 1874- 
And lield that the telegraph lines of Porto Rico, which by the treaty 
of Paris, became the property of the United States, could not be 
alienated except by authority of Congress. C. 8097, Apr., 1900; 
10819, July 13, 1901; 11131, Oct. 11, 1901; 13102, Aug. 9, 1902; 
13757, Dec. 6, 1902; 13419, Ma^. 11,1903; I4454, Apr. 17, 1903; 21384, 
Apr. 13, 1907; 19282, Mar. 2, 1906. 

* The leading case on this point is United States v. Nicoll, 1 Paine, 646 (Fed. 
Cas. 15879), in which it was held that a sale or loan, by the commandant of an 
arsenal, of a quantity of lead belonging to the United States, was illegal and 
invalid. The court say: "The Constitution declares that 'Congress shall have 
power to dispose of and make all needful rules and regulations respecting the terri- 
tory or other property belonging to the United States.' No public property can 
therefore be disposed of without the authority of law, either by an express act of 
Congress for that purpose, or by giving the authority to some department or sub- 
ordinate agent. No law has been shown authorizing the sale of this lead; nor is any 
such authority to be infeiTed from the general power vested in any of the depart- 
ments of the Government. The power, if lodged anywhere, would seem most appro- 
priately to belong to the War Department. But there is no such express or implied 
power in that department to sell the public property put under its management." 
And see the same principle recognized in an opinion of the Attorney General (10 
Op. 477), in which it is held that the Secretary of War was not empowered to sell 
arms to a State, in the absence of authority from Congress. 

In certain emergencies, however, the use of property of the United States to relieve 
suffering among persons not entitled to such aid has been authorized by the Presi- 
dent, and similarly the Army Regulations contain provisions with reference to the 
care of certain sick persons not entitled to such care; but there is no authority of law 
for this. It can only be said to rest on the necessity of furnishing relief in such cases. 



PUBLIC PROPERTY I A 4. 905 

I A 4. The provision of the Constitution in regard to the dispo- 
sition of pubhc property applies to exchange as well as to other 
disposition thereof. An exchange of public property for other prop- 
erty not belonging to the United States can not, therefore, be made 
except by authority of Congress. R. 52, 316, June, 1887; P. 37, 204, 
Dec, 1899; C. 613, Nov., 1894; 1223, Apr., 1895; 2127 and 2183, 
Mar. and Apr., 1896; 3414, Aug., 1897; 11743, Dec, 1901; 12479, 
Apr. 24, 1902. However, an exchange is recognized as a common 
business transaction, and where there is authority for the condemna- 
tion and sale of unsuitable materials, such as is given in section 1241 
R. S., with respect to old material, condemned stores, etc., and also 
authority for the purchase of new supplies, an exchange may legally 
be effected, provided the amount allowed for the old materials in 
part payment be covered into the Treasury in conformity to the 
requirements of section 3618 R. S., as amended by the act of July 8, 
1896 (29 Stat. 268), which requires the net proceeds of the sale of 
the same to be "covered into the Treasury as miscellaneous receipts," 
tlie appropriation for the new supplies to be charged for the full 
value of the same.^ C. 3414, Dec 19, 1904, a^ ^'^9- i^, 1^05; 
I642O, June 4, 1904; 20159, Aug. 8, 1906. And where there is 
statutory authority to credit the proceeds of the sale of unserviceable 
property to the appropriation for the work for wliich it was pur- 
chased, as in sales of river and harbor property under section 5 of 
the act of June 13, 1902 (32 Stat. 373), the exchange of the old sup- 
plies may be made for new in part payments without the necessity 
of any transfer of appropriations.^ C. 3414, J^"^^- ^j 1904, Dec 19, 
1904, and Aug. 12, 1905; 20159, Aug. 8, 1906. 

I A 4 a. Held, that in the absence of authority from Congress the 
Secretary of War could not be empowered to sell military stores to a 
state or to exchange for such stores in possession of a State. P. 4I, 
497, Julij, 1890; 42, 371, Aug., 1890. The militia act of January 21, 
1903 (32 Stat. 775), authorizes the sale to a State, Territory, or the 
District of Columbia of military stores, etc., and the exchange of old 
arms and ammunition for new. On application by the governor of 
Hawaii for the sale to that Territory of a flag for use on the capitol 
building, held that while supplies for the militia might be sold to the 
Territory, imder section 17 of said act, there was no statutory author- 
ity for a sale for other purposes, and that, as to such sales, the funda- 
mental rule is applicable that Congress alone can authorize the 
disposition by sale or otherwise of public property. C. 15286, Oct. 
6, 1903. 

I A 4 b. Under the provisions of the act of March 3, 1879 (20 Stat. 
412), the Secretary or War is, upon the request of the head of any 
department, authorized and directed to issue arms and ammunition 
whenever they may be required for the protection of public money 
And property, to any officer of the department designated by the head 
thereof, to be returned when the necessity for their use has passed. 
Held that under this statute the Secretary of War could furnisn arms 
and ammunition, upon the request of the Secretary of the Interior, to 
an Indian a^ent for use of liis police to meet any threatened armed 
opposition that might arise in the attempt of the agent to evict tres- 
passers from the reservation under his charge. C. 1419, June, 1895. 

' V Comp. Dec, Tlfi; 15 Op. Atty. Gen., 322; Cir. 1, W. D., Jan. 3, 1906. 
2 IX Comp. Dec, 311. 



906 PUBLIC PEOPEKTY I A 5. 

I A 5. Where it was reported that the Indians in the Copper River 
district of Alaska were destitute and in need of food, and it was 
proposed that rations should be issued them by the War Department, 
held that although there is no statutory authority for lurnisliing 
rations in such a case, issues of rations have heretofore been made by 
the War Department to destitute persons where the overruling 
demands of humanity made it necessary.^ C. 6836, Aug. 3, 1899; 
7493, Jan. 12, 1900; 143^7, Mar. 23, 1903; 23289, Sept. 27, 1909. 
Similarly Tield as to the authority to sell coal at net cost {C. 19307, 
Mar. 2, 1906); and as to the loan of coal, security being taken there- 
for. C. 19307, Oct. 13, 1906. 

I A 5 a. Held that while there is no statutory authority for making 
a regulation placing civilian emplojrees of the Government on the 
same footing as discharged soldiers with regard to rations while under 
treatment in hospital, neither is there such authority for the regula- 
tion in regard to discharged soldiers.^ The best that can be said of 
such regulations, like the provisions for the issue of rations to suf- 
ferers from flood and famine, is that they are founded on a kind of 
necessity. C. 9491, Dec. 24, 1900. 

I A 6. Where a balloon, property pertaining to the Signal Corps, 
had been sent on a voyage and was picked up by a private person 
who refused to give it up until paid the sum of $20, lield that the 
sending of the balloon on the voyage did not constitute an abandon- 
ment of the property so as to entitle the finder to keep it, such action 
being the appropriate method of using the property so that it must 
be assumed there was an intention to retain title and recover the 
property if possible; that unless a reward was offered, the finder 
would have no lien on the property, either for reward or expenses ; ' 
that if he appropriated it to his own use, he would render himself 
liable, both civilly and criminally;* and advised that the papers be 
referred to the Attorney General, with request that action be taken 
to recover possession of the balloon. C. 18456, Aug. 22, 1905. 

I B. The Secretary of War is not authorized, without the author- 
ity of Congress, to turn over property of his department, in liis charge, 

1 Such issues are sanctioned by par. 1241 A. R., which provides that the issues will 
only be made "when the commanding officer assumes the responsibility of ordering 
the issue to relieve starvation or extreme suffering. " In an unpublished opinion of the 
Acting Attorney General, Oct. 15, 1908, in regard to the issue of provisions and rations 
to citizens of Georgia made destitute by recent storms, it was said: "That while there 
is no direct authority by statute for affording temporary relief in such an emergency, 
yet there is no statutory prohibition; and, in view of the fact that such relief has been 
extended in the past, the Attorney General thinks that under the general executive 
power the contemplated relief may be given in the present emergency." Rations 
were issued in conformity with this opinion; and, under date of July 6, 1890, the 
Secretary of War authorized the issue of 10,000 rations for the benefit of sufferers from 
floods in Texas. Provision for similar relief were made by Congress as follows, inter 
alia: By act of Mar. 31, 1890, for the relief of persons driven from their homes by floods 
in Arkansas, Mississippi, and Louisiana; by joint resolution of Apr. 25, 1890, lor pur- 
chase and distribution of subsistence stores for persons suffering from floods of the 
Mississippi River; by joint resolution of Dec. 25, 1893, for pecuniary aid, in the discre- 
tion of the Secretary of War, to Government employees injured by the Ford's Theater 
disaster; by public resolutions No. 17, Apr. 30, 1908, and Nos. 20 and 21, May 11, 1908, 
to relieve the distress occasioned by recent storm or cyclone. 

2 See par. 1474 and 1475 A. R., 1910, as to discharged soldiers' receiving hospital treat- 
ment and rations while under treatment. See also par. 1483 as to civilian employees. 

^ Tome V. Four Cribs of Lumber, Fed. Cases No. 14083; Reeder v. Anderson, Admin- 
istrator, 34 Ky., 193; Chase 1;. Corcoran, 106 Mass., 286. 

* Am. & Eng. Ency. of Law, 2d Edition, vol. 18, pp. 504, 520. 



PUBLIC PROPERTY I B 1. 9Q7 

to another department for its permanent use and disposition. P. 51, 
414, Jan., 1892. C. 1623, Aug., 1895. But such transfer may be 
made with proper debit and credit of appropriations.^ C. 3679, 
Jan., 1898; 78^0, Mar., 1900; 12491 , May 6, 1902: 16202, Apr. 20, 190^. 

Under paragraph 616, Army Regulations (630 of 1910), ''The 
transfer of public property from one bureau or department to another 
is not regarded as a sale." ^ Paragraph 671 (682 of 1910) requires 
for such transfer "special authority of the Secretary of War" and 
provides that "when between a bureau of the War Department 
and any other executive department the amount to be paid wiU 
include the contract or invoice price, and cost of transportation." 
The amount thus determined should be transferred as indicated on 
page 602, volume 3, Decisions of the Comptroller of the Treasury. 
Held that a transfer of certain clothing from the Quartermaster's 
Department to the Department of Justice for the use of prisoners 
in the United States penitentiary at Fort Leavenworth could legally 
be made under the provisions of the regulations cited, the latter 
department having an appropriation made by Congress for the 
purchase of clotliing for the prisoners named. C. 7184, Oct., 1899. 
Similarly Tield with respect to a proposed transfer of five mules pur- 
chased from the appropriation lor river and harbor improvements, 
to the Quartermaster Department of the Army. C. 3679, Jan., 1898; 
11839, Jan. 3, 1902; 12191, Mar. 10, 1902; 12491, May 6, 1902; 
I48I7, June 17, 1903; 16202, Apr. 20, 1904; 17672, Mar. 10, 1905. 

I B 1 . The exchange of a hghthouse reservation for a military 
reservation by the Treasury and War Departments would not be 
legal without the authority of Congress, but advised that it would be 
in accordance with precedent for each department ,to give to the other 
a license to occupy the lands of that department pending action by 
Congress. C. 3667, Nov., 1897; 8743, Aug., 1900; II478, Oct. SO, 
1901. 

Instances of transfers to another department are: The transfer 
of Dry Tortugas, Fla., to the Navy Department by direction of 
the President in April, 1900_ (C. 7968, Apr. 2, 1900); the transfer 
of a portion of the reservation of Point Loma, Cal., to the Navy 
Department for a coaling station {C. 11133, Sept. 13, 1901); and the 
lease of the reservation of Fort Trumbull, Conn., to the Treasury 
Department. C. 24526, Feb. 23, 1909, and June 21, 1910. With 
reference to the transfer of Dry Tortugas, supra, it was thought that 
this reservation, having been reserved from public domain and being 
of no further use for mihtary purposes, could be transferred direct by 
the President instead of being placed under the control of the Depart- 
ment of the Interior under the act of July 5, 1884 (23 Stat. 103), 
and subsequently reserved for naval purposes. C. 24597, Mar. 9, 
1909. Where, however, land has been j3urchased and not reserved 
from pubhc domain, a complete transfer would require authority 
from Congress. C. 20674, Oct. I4, 1907; 24597, Mar. 9, 1909.^ 

' See pars. 630 and 682 (1910), and III Comp. Dec. 602. 

» See 17 Op. Atty. Gen. 480. 

3 Opinion of Attorney General, dated Nov. 21, 1907, not published. See, however, 
decision of Acting Secretary of the Interior, June 4, 1885 (3 Land Decisions, p. 577), to 
the effect that Fort Sullivan, Me., a military reservation acquired by piu-chase and 
within a State having no public lands, could be disposed of under the act of July 
5, 1884 (23 Stat. 103), and to transfers in Porto Rico, see 25 Op. Atty. Gen., 269; 
28 Op., 262 (as to transfers in P. I.). See also opinion of July 17, 1911, as to Porto 
Rico. 



908 PUBLIC PEOPEETY I C. 

I C. Requests for the loan of tents, flags, and other public property 
under the control of the War Department have, as a rule, been denied 
on the ground that the Secretary of War had no authority to loan 
public property under his control unless authorized to do so by reso- 
lution or act of Congress.^ Wliile there have been instances in which 
dredges and other public property used for the improvement of navi- 
gation have been loaned under authority of the War Department, the 
practice has been, with few exceptions, in accordance with the view 
that, in the absence of authority from Congress, the Secretary of War 
can not legally loan personal property of the Government. C. 1561, 
July, 1895'; 2265, May, 1896. Held, therefore, that in the absence of 
congressional authority Government ambulances could not be loaned 
to the National Guard of a State for use on a practice march. C. 
1561, supra. But held that it was within the discretion and power of 
the Secretary of War to temporarily furnish transportation and an 
escort for a United States judge, on his request, while traveling from 
place to place for the purpose of holding court in the Indian Territory. 
Such use would not be a loan. C. 228, Aug., 1894; 10655, June 11, 
1901; 16155, Apr. 7, 1904; 19282, Mar. 2, 1906; 20846, Dec. 28, 
1906, and Jan. 30, 1907. 

I D. \Vlien a general deposit is made in a bank, the depositor parts 
with the title to the money deposited and takes in the place of it a 
credit. This credit is a chose in action and is "property." This kind 
of property when belonging to the United States may, under para- 
graph 585, Army Regulations (496 of 1910), be protected like any 
other property. ' C. 314, Sept., 1894. 

I E. Except the State, War, and Navy Building, provided for by a 
separate statute of March 3, 1883, the other buildings owned by the 
United States and occupied by the War Department are not found 
to have been taken from the charge of the Chief of Engineers. The 
fact that a '* superintendent of building" is authorized, as in the case 
of the appropriation for the Record and Pension Office, would not 
take the building from the general charge devolved upon the Chief of 
Engineers by section 1797, R. S. P. 60, 237, June, 1893. 

I F. In a case where an officer had been relieved from duty as 
company commander and another officer placed in temporary com- 
mand pending the arrival of the officer who was to assume perma- 
nent command — the order relieving the officer providing that he 
should retain charge of the funds and property— AeM, on the question 
of whether it was competent to require the officer who had been 
relieved to continue his responsibility for the company property, 
that where, as in this case, an officer is permanently relieved, the 
responsibility and accountability should devolve upon his successor 
in office, proper receipts being taken by the officer relieved, and 
that he can not properly be required to retain responsibility after he 
has been permanently relieved and another officer placed in com- 
mand, unless the exigencies of the service require his immediate 
departure without making the formal transfer required by the regu- 
lations. C. 27780, Feb. 4, 1911. Held, further, that the regulations 

* Such action, for example, was taken by the War Department, Jan. 16, 1881, on a 
request for the loan of tents for a camp meeting, and again on June 24, 1896, on a 
request for the loan of flags to be used at an encampment. 



PUBLIC PROPERTY I F 1. 909 

contemplate that any officer who has the custody of Government 
property is responsible for it regardless of where the accountability 
or responsibility might otherwise rest on paper; and that tlie general 
principle is that all officers are responsible for any Government prop- 
erty with which they are in any way connected, and the mere fact 
that an officer has not receipted for any given article can not be 
accepted as a warrant for his failure to exercise the utmost diligence 
under all circumstances to see that such property is properl}^ safe- 
guarded. C. 27780, Feb. 4, 1911. He will be liable only where a 
loss has been incurred, and then only where the loss is the result of 
his failure to exercise that degree of care which the cii'cumstances 
required. P. 4-6, SjO, Apr., 1891. 

I F 1. A recruiting officer's clerk (a corporal), having access to 
blank transportation requests, filled out several in favor of a railroad 
compan}^, forged thereto the name of the officer, and disposed of the 
same.^ The forged requests were paid by a disbursing officer. Held 
that the latter, having paid out money of the United States on forged 
vouchers, was alone legally accountable for the loss. If the officer who 
permitted access to the blank requests thereby committed a military 
offense, his amenability for such offense could be enforced only by 
means of a trial, conviction, and punishment by court-martial. 
Whatever may be the legal effect of paragraph 35, Circular 7, Adjutant 
General's Office, 1892, the loss in question occurred prior to the pro- 
mulgation of the circular. P. 56, 208, Oct., 1892. 

I F 2. Where an officer, having had intrusted to him by another 
officer a medal of honor intended for and to be deUvered to an enlisted 
man, gaA-e such care to its safe-keeping as he gave to his own property, 
locking it up in his trunk for the purpose of transportation, held that 
he was not legally accountable for the loss of the medal in transitu. 
He was simply a gratuitous bailee, of whom is required only the lowest 
degree of care and who is not liable for a loss which is not the result of 
gross negligence. P. U, 382, Dec, 1890. 

I F 3 . A board of survey (now surveying officer) is not a court and 
can not legally exercise the powers expressly vested by statute in 
courts-martial or courts of inquiry, i?. 34, 306, June, 1873. It is 
no part of the province of a board of survey to convict of crime. 
Where such an officer or board, in fixing upon an officer a pecuniary 
responsibihty for the loss of certain subsistence stores, expressed in- 
cidentally tile opinion that the same had been stolen by a certain 
soldier, held that this opinion could not operate as a finding of theft 
or constitute authority for the stopping against the pay of the soldier 
of the value of the stores.^ R. 42, 605, Apr., 1880. 

I F 3 a. There is no statute or regulation authorizing the swearing 
of a board of survey (now surveying officer), nor indeed is it necessary 
that such a body should be specially sworn. A board of survey, 
moreover, has no legal capacity to swear persons attending before 
it as witnesses, nor is it within the province of an executive order to 
authorize such a board to administer an oath either to itself or to 

' It was held by the Comptroller that where a stolen transportation request was 
accepted in good faith by a railroad company the company was entitled to payment 
for the Bervices so rendered. VI Comp. Dec. 936; XIV id. 7; I Mas. Comp. Dec. 251. 

2 See Article LVI, Army Regulations of 1910. 



910 PUBLIC PROPERTY I F 3 b. 

a witness.! R. 5, 590, Jan., 186 J^; 33, 548, 561, Bee, 1872; 34, 305, 
June, 1873. 

I F 3 b. A board of survey (now surveying officer) , though it may 
iiot swear witnesses, may receive and file with its report affidavits of 
persons cognizant of facts under investigation. JR., V, 590, Jan., 
1864. 

I F 4. A person who, as an officer of the Army, has been subjected 
under section 1304, R. S., to a charge, against liis pay, of tlie money 
value of military stores deficient or damaged for which he has been 
held accountable, can not, after he has ceased to be such officer and 
has left the Army, be relieved from such liability by the Secretary of 
War under that section. For such relief he must have recourse to 
Congress. P. 65, 137, May, 1894. 

I G. Held, with respect to the proposed donation to the United 
States of six horses, that in the absence of a statute forbidding the 
acceptance of the same, such as applies to the purchase of land (sec. 
3736 R. S.) or to the acceptance of voluntary services (sec. 3679 R. S., 
as amended Feb. 27, 1906 — 34 Stat. 49), there would be no legal 
objection to the acceptance of the proposed donation. C. 27872, 
Feb. 17, 1911. Similarly held, with respect to the acceptance of a 
proposed donation by the county of Galveston, Tex., of shell for the 
repair of Government roads at Fort Crockett — the work being of 
benefit to the communitv as well as to the Government. C. 29257, 
Nov. 22, 1911. 

II A. In the absence of statutory authority, land can not be pur- 
chased/or the United States with any more legality than land of the 
United States can be sold or disposed of. By a provision of an act 
of May 1, 1820, now contained in section 3736, R. S., it is declared 
that "no land shall be purchased on account of the United States 
except under a law authorizing such purchase." Held that the term 
''purchase" was to be understood in its legal sense, as embracing any 
mode of acquiring property other than by descent;^ and that there- 
fore the Secretary of War would not be empowered to accept a gift of 
land or interest in land, for anv use or purpose independently of 
statutory authority.^ R. 32, 19, Sept., 1871; 38, 175, July, 1876; 
39, 313, Nov., 1877; 44, 9, June, 1880; C. 3896, Feb., 1898; 11024, 

1 See opinion of Judge Advocate General published in full in G. 0. 68, War Dept., 
1873; also par. 712, A. R. (795 of 1901). But see sec. 183, R. S., as amended Mar. 
2, 1901, so as to provide, inter alia, that "Any officer of the Army detailed to conduct 
an investigation, and the recorder, and, if there be none, the presiding officer of any 
military board appointed for such purpose shall have authority to administer an 
oath to any witness attending to testify or depose in the course of such investigation." 
See also par. 725, A. R., 1910. 

As to the procedure of boards of survey, action on their reports, etc., see G. O. 179 
of 1898. 

2 See 7 Op. Atty. Gen. 114, 121; Ex parte Hebard, 4 Dillon, 384; Fed. Gas., 6312. 
^ See this opinion concurred in by the Attorney General, in 16 Op. 414. As statutes 

specially authorizing the acceptance of donations of land, note the early acts of Mar. 
20 and May 9. 1794, and, later, the acts of Feb, 18. 1867; Mar. 3, 1875; June 23, 1879. 
That authority, however, to purchase, and, a fortiori perhaps, to accept a gift of, the 
necessary land, may be implied from an appropriation act granting a sum of money 
for a public work requiring for its construction the occupation and use of certain land 
of an individual or corporation, see opinions of the Attorney General in 15 Op. 212; 
16 id. 119, 387. In the opinion in 16 Op. 119, it was held that where no statutory 
authority whatever existed for accepting agift of land, a head of department would 
not be justified in accepting the same on the condition that Congress ratify the accept- 
ance and in anticipation of such ratification. 



PUBLIC PROPERTY II A 1. 911 

Aug., 1904; 1^702, May, 1902; 13854, Jan., 1903; 13586, Nov., 1902. 
And similarly held as to the construction of the same word (''pur- 
chase") as employed in sec. 355, R. S., and advised that an appropri- 
ation of public money could not legally be expended for the erection 
of a public building upon land donated to the United States, until the 
Attorney General had approved the title, and the legislature of the 
State in which the land was situated had given its consent to the 
grant.i B. 32, 19, supra; 39, 313, supra; 42. 452, Bee, 1879; C. 
12242, Apr., 1904. 

II A 1. In view of the prohibition of section 3736, R. S., that "no 
land shall be purchased on account of the United States, except 
under a law authorizing the same," the Secretary of War can not 
accept a grant by gift of land or of an easement in land, without 
statutory authority.^ R. 45, 359, June, 1882; P. 40, 447; May, 
1890; 43, 70, Sept., 1890; C. 3896, Feb. 24, 1898; 12242, Mar., 1902. 
And lield that, in the absence of authority from Congress, a purchase 
of lots in a city cemetery for the burial purposes of a neighboring 
military post would not be legal or operative. P. 31, 4^6, Apr., 
1889. Also Md that under the act of August 18, 1890 (26 Stat. 
316), authorizing the acquisition by purchase, ^ condemnation, or 
donation of land or easement therein for fortification and coast 
defense purposes, the proposed donation of the right of way for a 
macadamized road between Fort Mansfield and Watch Hill, R. I., 
being in aid of such purposes, could legally be accepted, if a proposed 
clause binding the United States to maintain the road be eliminated. 
C. 13854, Jan. 29, 1903. 

II A 2. The statutory authority relied upon for the purchase of 
land by a head of a department should be clear and indisputable. 
Thus Keld that authority to purchase additional land for the interment 
of soldiers could not be derived from the general proxTision of the 
annual appropriation act, appropriating a certain sum for maintain- 
ino: the existing national cemeteries. R. 4^ j 50, Nov., 1877. And 
held that an appropriation for the "establishment" of a military 
post in the vicinity of Manila would not be sufficient in view of the 
positive prohibition of the statute.^ C. 12154, Mar., 1902. 

II A 2 a. A statute conferring a specific authority to purchase 
certain land should, in the exercise of the authority, be strictly con- 
strued. Thus where a statute authorized the Secretary of War to 
purchase, for a certain stated sum, a certain described tract con- 
taining a specified number of acres, held that the act did not invest 
him with discretion to purchase a portion only of such tract. R. 38, 
346, Oct., 1876; P. 37, 203, Dec, 1889; C. 13580, Nov. 4, 1902; 
15110, Sept. 1903; 24464, Sept., 1909. Held, however, that pur- 

1 But under the implied authority contained in sec. 1838, R. S., lands required as 
sites for forts, arsenals, etc. , or needful public buildings, may be purchased (or acquired 
by gift) without the consent of the State, though, in the absence of such consent, public 
money can not, in view of the provisions of sec. 355, legally be expended upon the 
buildings. 10 Op. Atty. Gen. 35; 15 id. 212. 

2 Butisy act of Apr. 24, 1888 (25 Stat. 94), the Secretary of War is expressly empow- 
ered to purchase, or accept donations of, land for river and harbor improvements; 
and sections 4870-4872, JKev. Stats., give general authority in respect to national 
cemeteries; and the acts of Aug. 18, 1890 (26 Stat. 316), and June 6, 1902 (32 Stat. 
305), and Apr. 28, 1904 (33 Stat. 497), confers similar authority with respect to lands 
needed for fortifications and coast defenses and barracks in connection therewith. 

3 See VII Comp. Dec, 524; 11 Op. Atty. Gen., 201; 12 Fed. Rep., 415. 



912 PUBLIC PROPERTY II A 2 b. 

chases can legally be made of portions of the lands authorized to be 
acquired under a given appropriation at prices indicating that the 
balance of the appropriation would be sufficient to cover the acqui- 
sition of the quantities specified, and that such a course is often 
necessary to accomphsh the object of an appropriation. C. 13580, 
Nov. 4, 1902; 15110, Sept., 1903, and Aug., 1906; 2U64, Sept., 1909. 

II A 2 b. The deficiency appropriation act of March 3, 1899, 
authorized the Secretary of War, "in cooperation with the Floyd 
Memorial Association," to cause to be erected over the remains of 
Sergt. Charles Floyd, a member of the Lewis and Clarke Expedition, 
a suitable monument near Sioux City, Iowa, and appropriated 
$5,000 for the purpose. Held that the act did not authorize or 
require the acquisition by the United States of the land upon which 
the monument was built; that it may be assumed that Congress 
intended that the monument should be cared for by the association, 
and that the United States should be at no other expense than that 
of the appropriation for assisting in its construction.^ There is no 
statute which would prohibit the expenditure of this particular 
appropriation if title to the site be not acquired by the United States, 
and in practice appropriations have frequently been expended in 
works of improvement where such title to the sites has not been 
obtained, especially in improvements of navigable waters and high- 
ways. The prohibitions of section 355, R. S., are not viewed as 
applicable to the case under consideration. C. 7842, Mar., 1900. 

II A 3. No formal acceptance of a deed, apart from the delivery, is 
necessary, and in the practice of the War Department a formal accept- 
ance is not usually given. An acceptance may be presumed from a 
variety of circumstances, such as placing the deed on record, posses- 
sion of the deed, the conveyance being beneficial to the grantee, the 
exercising of ownership over the property conveyed, etc. Thus, where 
the Secretary of War secured in 1871, under section 18 of the act of 
July 17, 1862, a deed to a certain piece of land for use as a cemetery, 
which deed was duly delivered, placed on record, and forwarded to the 
War Department, and the land was so used until 1880, at which time 
the Secretary of War declined to accept the said deed of 1871, it was 
held that the deed had long since been legally accepted, vesting the 
title in the United States, that the subsequent refusal to accept it, 
did not divest the title, and that, in the absence of authority from 
Congress, the Secretary of War could not convey it to other parties. 

II A 3 a. The owner of a certain tract of land subject to overflow 
from the Government reservoir system at the headwaters of the 
Mississippi River, conveyed to the United States by a deed, duly 
executed, acknowledged, and recorded, the perpetual right to overflow 
the said tract for a nominal consideration. Subsequently he asked 
that the deed be canceled and another and larger consideration be 
paid him for the easement. Held that the Secretary of War had no 
authority to cancel the deed or to release the easement conveyed by 
it. C. 3782, Jan., 1898. 

II A 4. Authority to acquire land in a State, by the exercise of the 
right of eminent domain, \^iether by proceedings for condemnation in 
the United States circuit court or in the courts of the State, ^ can be 
vested in an executive official of the United States, onlv b}' express 
legislation of Congress. R. 42, 63, Dec, 1878. 

1 See VI Comp. Dec, 791. ^ ggg Kohl v. United States, 1 Otto, 367. 



PUBLIC PEOPERTY II A 4 a. 913 

II A 4 a. The Constitution declares that private property shall not 
be taken "for public use without just compensation." It does not 
provide or require that compensation shall actually be paid in advance 
of occupancy of land to be taken. But the owner is entitled to 
reasonable, certain, and adequate provision for obtaining compensa- 
tion before his occupancy is disturbed.^ Wlien there is no provision 
for compensation private property should not be taken against the 
consent of the 0A\Tier for public use. Thus held that condemnation 
proceedings against land adjoining the Presidio of San Francisco, 
Cal., should not be instituted prior to an appropriation by Congress. 
a 3231, May, 1897; 20561, Oct. 26, 1906. 

II A 4 b. Held that there was no general act' of Congress making 
State courts an agency of the United States for the purpose of con- 
denming lands; and that proceedings for this purpose should be had 
in a United States court under an act of Congress, or in a State court 
when such court has been by such act made an agencv for the purpose. 
P. 38, 271, Feb., 1890. 

II A 4 c. Where certam land, part of the battlefield of Gettysburg, 
was in danger of being so cut up and altered by the construction of an 
electric railroad as to cause the obhteration of important tactical posi- 
tions occupied by different commands engaged m the battle, advised 
that the Attorney General be requested to have initiated the proper 
proceedings for the condemnation of the land so that the United States 
may acquire the fee, and for an injunction restraining the railroad 
company from constructing or operating its road upon the land pend- 
ing the condemnation proceedings.^ P. 64, 4^1, Apr., 1894- 

II A 5. Where an enactment of Congress (the river and harbor 
appropriation act of Sept. 10, 1890) required the Secretary of War to 
"acquire the title" to certain lands sufficient for a right of way for a 
canal, held that a contract of conveyance made \vdth the owner of 
the land, a railroad company, by which a use was granted of such way 
jointly with the compan}^, was not a comphance with the law, and 
that u no better title could be obtained by agreement, the Secretary 
should proceed to the alternative (authorized in the act) of causing 
the premises to be condemned. P. 51, I84, Jan., 1892. 

II A 6. Section 355, R. S., prohibits the expenditure of pubUc 
money upon any site of land purchased for militaiy purposes, inter 
alia, "until the written opinion of the Attorney General shall be had 
in favor of the validity of the title." Before payment can be made 
for any land acquired by purchase, condemnation, or donation, the 
title must be approved by the Attorney General. C. 12154, Mar. 31, 
1902; 15611, Dec. 15, 1903. Held, however, where it was proposed 
to reimburse the city of Manila for a gun shed or storehouse erected, 
out of insular funds for military purposes, on lands of the city, that 
such reimbursement might legally be made from the appropriation 
"barracks and quarters"; that in practice appropriations for similar 
purposes have been used in erecting temporary shelter for the Army 
without first acquiring title to the sites of the same, and that in such 
cases section 355, R. S., does not apply. C. 12347, Apr. 1, 1902; 
13680, Nov. 25, 1902. 

' Cherokee Nation v. Kans. Ry. Co., 135 U. S., 641, 659. 

^ Compare subsequent opinion of Attorney General, in 20 Opins., 628, 

93673°— 17 58 



914 PUBLIC PKOPEETY II A 6 a. 

II A 6 a. Held with reference to the purchase of land at Pine Plains, 
N. J., where the option bound the owners of the property to give a 
"good and sufficient kill covenant deed * * * fj.gg ^nd clear 
from all * * * incumbrances," but did not include any obliga- 
tion to furnish an abstract of title, that under the American rule where 
a contract of sale does not require the seller to furnish one, he is not 
bound to do so ; and that if the land is to be purchased, the expense of 
procuring an abstract of title would be a proper charge against the 
appropriation for the property.* C. 2544^, Aug. 26, 1909. Held, 
also, that the expense of survey would be a proper charge against the 
appropriation if the land is to be acquired by purchase. C. 2544^1 
Nov. 11, 1909. Further Tield, after it had been found necessary to 
acquire certain tracts by condemnation proceedings, that since the 
expenses for abstracts were incurred when it was intended to pur- 
chase the property, they could not be considered a part of the expenses 
of condemnation, and were'properly payable from the api)ropriation 
for the property. C. 25446, Feb. 16, 1910. With reference to the 
expense of serving offers in condemnation proceedings held that they 
were a part of the expenses of the proceedings and could not therefore 
be paid from the appropriation for the property .^ C. 2544^ j Mar. 28, 
1910. 

II A 6 b. The title to lands purchased on account of the United 
States is not properly assured by a certificate of "no liens," signed by 
the attorney who made the abstract of title. The proper person to 
make such a certificate is the custodian of the records of judgment 
and other record liens in the county in which the land is located.^ P. 
S3, 292, July, 1889. 

II A 6 b (1). Where the Attorney General certified the title to 
land in Texas, subject to a vendor's lien for purchase money, and the 
person having said lien could not be located, lield that as the deed 
recited that the money was "secured to be paid," the terms of the 
sale should be regarded as excluding the implied or equitable lien for 
the payment of the purchase money;* but that, assuming that the 
circumstances did not exclude the lien, being an implied or equitable 
one only, it would not survive the statute of limitations as applied to 
the deed secured thereby.^ Advised, therefore, that the conveyance 
be accepted, secured by a certified check in the amount of the deed. 
C. 21021, Bee, 1906. 

II A 6 b 2. Where, in the purchase of land for fortifications, title 
was encumbered by the lien of a judgment against one of the vendors, 
who appealed the case, held that there was no legal objection to mak- 
ing the purchase under an agreement to withhold a portion of the 
purchase price until the removal of the lien. C. 26834, June 6, 1910. 

1 See III Comp. Dec, 216; VllI id., 212, IX id., 569. With reference to the act 
of Mar. 2, 1889 (25 Stat. 941), providing that in procuring sites for public buildings the 
Attorney General shall require the grantors to furnish, without expense to the Govern- 
ment, "all requisite abstracts, ' etc., the comptroller held that this statute did not 
apply in procuring sites for tortihcations undef the War Department. Ill Comp. Dec, 
216. 

2 1 Comp. Dec, 317; II id., 202, 111 id., 216, IX id., 569-572. 

^ See G. 0. 47 of 1881, for Attorney General's regulations as to making deeds, prov- 
ing title to lands, etc. 

* Houston V. Dickson (64 Texas, 79); 29 A. & E. Encyc. of Law, 2d ed., 742. 

* Pitschki V. Anderson (49 Texas, 3), and Howard et al. v. Windom (86 id., 561). 



PUBLIC PROPERTY II A 6 C. 915 

II A 6 c. A grant of land for a particular use is sometimes held to 
constitute a qualified or determinable fee, so that if the land is put to 
other uses it reverts to the grantor; but where the proposed use is 
kept up the grantor can not claim the property under his right of 
reverter because it is also put to another use, "unless by the grant 
the use is, by words excluding any other use, restricted to the purpose 
recited."^ Held, therefore, that land acquired for military purposes, 
subject to such limited use, might be leased temporaril}^ without 
endangering the title thereto. C. 4IOO, Oct. 27, 1898. Similarly 
Jield, with reference to the issue of a permit to the Treasury Depart- 
ment for a life-saving station on the military reservation of Fort 
Ontario, N. Y., which was granted by the State for military purposes 
with a provision for reversion to the State whenever it should cease 
to be occupied for such purposes, that the proposed permission, being a 
revocable one, and the reservation as a whole continuing to be occu- 

{)ied for military purposes, the proposed permit would not lead to any 
egal complications. C. 28650, July 8, 1911. Held, also, that the 
Gettysburg National Cemetery, which was acquired for the burial of 
soldiers who fell in defense of the Union in the Battle of Gettysburg, 
might be used for the burial of other persons specified in section 4878 
R. S., including deceased soldiers of the war with Spain, without 
impairing title to the property. C. 62J^6, Nov. 10, 1898. 

IIA6 c (1). The State of North Carolina ceded to the United 
States, by an act of its legislature of 1794, the land of the present mili- 
tary reservation at Southport, N. C, the site of old Fort Johnson. A 
condition of the deed of cession was to the effect that a fortification 
should be erected on the land within three years and be maintained 
forever thereafter for the public service, or the land should revert to 
the State. The time allowed was repeatedly extended, the last exten- 
sion expiring in 1818, when a fortification had been constructed if not 
fully completed. The fort has long since ceased to be garrisoned. In 
1889 an individual citizen "entered" the site asStateland. Held that 
this act was without legal authority or effect; that the condition sub- 
sequent in the deed was one of the breach of which the grantor, the 
State, could alone take advantage; and that, as the State had not 
proceeded to re-enter for such breach, the United States was not 
ousted and could legally continue to hold the premises.^ P. 36, 
107, Oct., 1889; 0. 13U8, Oct. 24, 1902; 19419, Apr. 13, 1906. 

Certain lands were granted to the United States for canal purposes, 
and it was expressly stipulated in the deed that the same should 
be "occupied, used, and employed in and for no other use or object 
whatever." A revocable license was granted by the Secretary of War 
to a bridge company to enter upon and lay a temporary railway over 
a part of such lands. Held that this was a mere permission for a tran- 
sient use not inconsistent with the grant ; and that, whether the stipu- 
lation in the deed was construed to be a mere covenant or a condition 
subsequent, there was here no such diversion of the premises from the 
purposes for which they were granted as to work a forfeiture.' B. 55, 
37, Sept., 1886. 

■ See leading cases in American Law of Real Property, vol. 2, pp. 24-27. 
^ See Schulenberg v. Harriman, 21 Wallace, 44. 

^ See 2 Washburn on Real Property, 6; McKelwav v. Seymour, 29 N. J. Law, 231, 
Chapin v. School Diet., 35 N. H., 452; Thornton v. trammel, 39 Ga., 202. 



916 PUBLIC PROPERTY II A 6 d. 

II A 6 d. Held, with reference to the deposit of money with the 
clerk of court in condemnation proceedings of land at Pine Plains, 
N. Y., that the investigation of the title by the United States attorney 
in charge of the proceedings, the approval of the same by the United 
States, together with the assent of the Department of Justice, may be 
regarded as a sufficient compliance with the statute to justify the 
proposed deposit. C. 2544-6, June 1, 1910. 

II A 6 e. On the question of whether possession could legally be 
taken of property under a decree of condemnation of the same — an 
appeal having been taken therefrom — upon tender of the amount 
awarded, and buildings be commenced thereon, held that while, under 
the decisions of the courts, possession might be taken of the property,* 
in view of the requirements of section 355, U.S., no public money could 
be expended thereunder, since title to land acquired by condemnation 
"does not vest until the amount of compensation is ultimately fixed 
and made to the owner,"^ and the Attorney General could not, there- 
fore, approve title. C. 8649, Feh. 8, 1901, and May 13, 1902; 15110, 
Jan. 8, 1907. Held, also, that title to lands transferred to the Govern- 
ment by deed vests in the United States only when the Attorney 
General approves the title. C. 15110, Jan. 8, 1907.^ 

II A 6 f. Where part of a tract of land was purchased for a lump 
consideration, the deed describing it as containing 150 acres, more or 
less; and later an agreement was made with the grantor for the balance 
of the tract at $100 per acre; and on survey of the same it was found 
that the land originally conveyed contained 193 acres; and the ques- 
tion was raised as to whether the Secretary of War could legally add 
to the purchase price, in procuring the said addition, sufficient to 
compensate the owner for the excess: held that he could not legally 
do so, since this would in effect be the application of that amount, not 
to the purchase of the additional land, but to the satisfaction of a 
claim. C. 94-69, Jan. 3, 1901. And where the United States pur- 
chased certain tracts for the Fort Oglethorpe target range by deeds 
calling for a lump consideration for the lands conveyed thereby, 
although describing the same as containing a specific number of acres, 
more or less, and it was found that owing to the fact that the tier of 
land lots, instead of containing 160 acres each as described in the 
official survey, contained only about 120 acres each, so that there 
was a shortage of about 22 per cent of the supposed area of the tracts 
purchased : held that as the tracts were purchased in gross and not b}'' 
the acre, and as there was no evidence of fraud on the part of the 
grantors, the United States could not recover on account of the short- 
age.* C. 24464, Sept. 6 and 23, 1911. 

II A 6 g. Where lands were conveyed to the United States by deed 
with the reservation of the "right to cut and remove * * * ivca- 
y^Q^Y * * * within five years from" its date, on the application 
of the grantor for an extension of one year in which to remove the 

* As to right of possession upon tender or payment into court, see Packard v. Bergen 
Neck R. Co. (48 N. J. Eq., 281); Mercer & S. Ry. Co. v. Delaware & B. B. R. Co. (26 
N.J. Eq., 464); Redmans. Philadelphia, etc. R. Co. (33 N.J. Eq., 165); Penna R. Co. v. 
National Docks R. Co. (53 N. J. Eq., 178); Jefferson v. N. Y. R. Co. (12 N. J. L. J., 175); 
Am. & Eng. Encyc. of Law, 2d Ed., vol. 10, 1137-1138. 

2 Cherokee Nation v. Kansas Ry. Co. (135 U. S., 659). 

3 Ryan v. United States (136 U. S., 86). 

* 24 L. R. A., 525; 68 id., 908. 



PUBLIC PROPERTY II A 6 h. 917 

timber, he having been in error as to the expiration of the time, lield 
that any rights under this reservation expired with the time limit, 
and that such of the timber as remained unsevered at the expiration 
of the time hmit was the property of the United States,* so that the 
Secretary of War could not legally grant the request. C. 21027, 
Sept. 27, 1911. 

II A 6 h. On the question of whether the opinion of the Attornej 
General is required, under section 355, R. S., where an easement is 
acquired for a pipe hne for a water main to a military reservation, 
held that where no lands are purchased, but only an easement therein 
is acquired, or where the purchase is not for the erection of struc- 
tures such as are described in said section, whether the interest 
acquired be a leasehold interest or an easement, temporary or per- 
petual, the opinion of the Attorney General is not remiired by law, 
and the decision of the proper department as to the sufficiency of the 
title for the purposes for which the same is required is not subject to 
review by the accounting officers.^ C. 11585, Nov. 30, 1907. Simi- 
larly lield, with respect to the donation to the United States of a per- 
petual easement for a levee. C. 22661, Jan. 25, 1908. 

II A 7. Held, in the matter of the proposed settlement of suit 
regarding title to lands claimed as a mihtary reservation at Rockaway 
Point, Long Island Sound, N. Y., that suit having been instituted by 
the United States in respect to such lands, the Attorney General 
would have authority, under his power to compromise the suit, to 
consent to a decree by which the title to a portion of the premises 
would be adjudged to the United States and the title to another por- 
tion of the premises in dispute to the defendants; that such pro- 
cedure would not be contrary to the provisions of section 3736, R. S.,' 
and that no special authority of Congress would be necessary to the 
acceptance of a conveyance of the portion to be awarded to the 
United States. C. 25778, Aug. 4, 1910. 

II A 8. Held, that jomt resolution No. 18, of April 11, 1898 (30 
Stat. 737), providing for the erection of a temporary fort or fortifica- 
tion in case of emergency, with the consent of the owner and without 
compliance with section 355 R. S., although passed just prior to the 
outbreak of the War with Spain, has alwaj^s been regarded as per- 
manent legislation. C. 15611, Feb. 21, 1908. 

II B. The Constitution vests in Congress the exclusive power to 
dispose of the property of the United States, real or personal.* The 
Secretary of War, m the absence of authority from Congress, can not 
ahenate land of the United States. Thus, where a company pro- 
posed to cut out and remove a part of a dam (some 140 feet) on Fox 
River, Wis., belonging to the United States, and to substitute another, 
as a private improvement, below, held that this was a proposition 
for the alienation by an executive official of public property and 
could not legally be entertained. P. 29, 259, Jan., 1889; C. 13074, 
Aug. 19, 1902; 14454, Apr. 17, 1903; 19896, June 16, 1906. 

'Adkins v. Huff, 3 L. R. A. [n. s.l, 649, and notes thereto. See, also, authorities 
cited in 55 L. R. A., 513. 

2 XII Comp. Dec, 691. 

3 See Neilson v. Lagow, 12 How. 98; U. S. v. Lane, a McLean, 365 (26 Fed. Caa,, 
No. 15559). 

* 16 Op. Atty. Gen. 477. 



918 PUBLIC PROPEKTY II B 1. 

Where the title to a small portion of the land acquired for a mili- 
tary reservation and post was disputed by a private individual, 
held that the Secretary of War had no jurisdiction to pass upon and 
decide such a question. He could not surrender such portion, even 
if he believed the claim to be sound, any more than he could surrender 
the entire reservation, to a claimant who could show evidence of an 
outstanding title in himself. It is not for the executive officers of the 
Government to determine whether the United States has a good title, 
or any title at all, to lands placed under their charge as property of 
the United States. Such questions are for the courts to decide. 
P. 62, U2, and 63, 90, Dec, 1893; C. 19896, June 16, 1906. 

II B 1. A statute may grant title, and a statutory grant is equiva- 
lent to a patent — is, in fact, in the words of Attorney General Bates, 
"the highest and strongest form of title known to our law." * Thus 
where a statute vests in terms in an individual or corporation the title 
of the United States to certain land or other public property, in occu- 
pation or charge of the military authorities, no deed or conveyance 
from the Secretary of War is necessary, all that is required being that 
the proper military commander or officer relinquish or turn over the 
premises or property to the grantee. R. 37, 696, June, 1876; 41, 
28, Oct., 1877. And where the grant by the statute is made upon a 
condition precedent, the title, upon the condition being performed 
by the paa-ty, becomes complete without any written deed. Thus 
where an act of Congress granted to a railroad company certain 
land for buildings and a right of way within the limits of a military 
reservation, upon the company's filing with the Secretary of the Inte- 
rior a map of its route to be approved by him, and also locating, 
under the direction of the Secretary of War, the land required for its 
buildings and roadway; held that, upon these conditions being duly 
performed, a complete title vested in the company. R. 36, 130, 
Dec, 1874. 

II B 2. An act of Congress authorized the Secretary of War simply 
to "cede" to a city certain piers. Held that the term ''cede" called 
for a simple absolute grant, and that a deed of bargain and sale for 
a valuable consideration was not the correct form of transfer; fur- 
ther, that as the authority was in terms to cede, without more, the 
Secretary would not be empowered to attach to the grant any cove- 
nants or conditions as to the use or care of the piers or otherwise. 
Should the city hereafter permit its piers to become an obstruction to 
navigation, there is a remedy provided by law. R. 53, 381, Apr., 
1887. 

An act of Congress authorized and directed the Secretary of War 
to seU a certain parcel of land at public auction and to convey the 
same to the purcliaser. The act also prescribed in detail the man- 
ner of advertising, &c. Held that the deed should preferably contain 
recitals showing that the provisions of the act of Congress under 
which it was given were complied with. C. 631, Nov., 1894. 

II B 3. It is well settled that while the United States is entitled to 
avail itself of statutes of limitation, it is not bound thereby.^ Held, 
tlierefore, that the occupancy of portions of the Washington Aqueduct 

I II Op. Atty. Gen. 49. And see 9 id. 346; 12 id. 254; 14 id. 320; Terrett v. Taylor, 
9 Cranch, 50. 

2 See U. S. V. Thompson, 98 U. S. 486. 



PUBLIC PROPERTY II B 3 a. 919 

lands by private parties, however long continued, gave them no title 
tliereto!^ C. 1069, Mar. 13, 1895. ijid where a claim of a right of 
way for a road through a military reservation was based on continued 
use, held that no title was acquired by user since the reservation was 
purchased, as it is well settled that no title against the Government 
can be acquired by adverse possession. C. 9003, Oct. 3, 1900. Also 
held, with respect to a claim of prescriptive title to water power of the 
Niagara River, on the ground of long possession of the riparian land 
*'with the belief and claim of title to the water power," that such 
claim was without legal foundation, and that, both under the common 
law and the civil law, title can not be acquired by prescription 
against the sovereign.^ C. 19094, Sept. 24, 1906; 19896, June 16, 
1906. 

II B 3 a. Held that the title and possession of the United States to 
and of ]and situate at El Paso, Tex., duly purchased for cemetery 
purposes, would properly be protected against a continuous trespass 
on the part of the municipality in cutting a street through the land 
by an injunction sued out in the proper court, the remedy by suit for 
damages being inadequate. ^ R. 49, 240, July, 1885. 

Wliere certain persons had entered unlawfully upon a military 
reservation and had proceeded to cultivate the soil of the same for 
their personal benefit and to lead off water, needed for the use of the 
garrison, in order to irrigate the ground so cultivated — advised that 
the commandant be instructed to ^ive such persons reasonable notice 
to quit with their property, and if they did not comply, to remove 
them by military force beyond the limits of the reservation.^ R. 42, 
256, Apr., 1879; C. 12941, July 16, 1902; 16983, Oct. 8, 1904. 

II B 3 b. A United States officer or agent in charge of lands of the 
United States who is made defendant in a suit in a United States or 
a State court in which title to such lands is claimed by an individual 
should duly appear and answer in court, and is not authorized to 
interpose physical force against the service of due process of the court 
in such a suit, however groundless he may believe it to be. So 
advised that the military force employed to protect the possession by 
the United States of a cemetery reservation at El Paso, Tex., to 
which title was claimed in a suit instituted by a citizen, be with- 
drawn, or at least ordered to obstruct in no manner the due execution 
of judicial process on the premises. P. 52, 182, Feb., 1892. 

II C Under the general rule, the purchase of land bounded by 
streets or liighways gives title to the fee to the center of the street 
or highway, where such title is in the grantor, unless the conveyance 
excludes the street or highway. Held, therefore, where title to lots 
of a subdivision was acquired for the enlargement of a military 
reservation, that on the vacation of the streets witliin the military 

' That adverse possession can not give title as against the Government, see Lindsey 
V. Miller, 6 Pet. 666; Jordan v. Barrett; 4 How. 169; Burgess v. Gray, 16 id. 448; 
Frisbie v. Whitney, 9 Wall. 187; Gibson v. Choteau, 13 id. 92; Oaksmith's Lessee v. 
Johnston, 92 U. S. 343; Sparks v. Pierce, 115 id. 408. 

"The only manner in which title to lands owned by the United States can be 
acquired is under some act of Congress directly making the grant or authorizing it to 
be made by some person or officer." 1 Cyc., 1111. 

2Pomeroy, Eq. Jiir, sees. 138, 1347, 1356. 

^ As to the authority to remove trespassers from military reservations, see 3 Opins. 
At. Gen., 268; 9 id., 106, 476; G. O. 74, Hdqrs. of Army, 1869. 



920 PUBLIC PKOPEETY 11 f). 

reservation the unencumbered title would be in the Government. 
C. 15110, Dec. 9, 1911; 19435, Apr. 2 and July 2, 1906; Nov. 19, 
1908. Held, also, that if the title did not pass with the lots, the 
Government, by the purchase of the several lots of the subdivision, 
acquired, as appurtenant thereto, a private easement or servitude 
for egress and ingress to the several lots. C. 15110, Dec. 9, 1911; 
19435, July 2, 1906, July 8, 1907, and Nov. 19, 1908. Held, further, 
where the entire subdivision was acquired and the streets simply 
led into the reservation, on the application of the town to sell the 
streets for a considerable sum, that the streets were virtually aban- 
doned, and if so, title was in the United States; and that, at most, 
the title of the town would be a naked one, barren of value to the 
town; and ad'dised that the purchase be not made. C. 19435, 
July 2, 1906; Feb. 8 and Mar. 19, 1909. 

II D. Wliere land proposed to be conveyed by a State to the United 
States for the purpose of fortifications was described in the proffered 
deed as extending to the sea and in a line along the sea, held that such a 
deed would convey only land extending to and bounded by high-water 
mark, and advised that the grant should be so expressed as specifically 
to include the shore to low-water mark, and should also embrace such 
water-covered lands as would be sufficient to prevent the erection by 
the authority of the State of structures that might interfere with the 
proper use of the land for purposes of fortifications. P 64, 249, Mar., 
1894- Where, however, under the laws of the State, a private o\vner's 
title extends to ordinary low-water mark, so that a conveyance bound- 
ing the lands ''on the sea or salt water" would give title to low-water 
mark,^ Tield that a conveyance of "all that portion of Peddocks Island 
* * * lying north of a straight line across the island" would give 
; title to low-water mark. C. 14.897, July 7, 1903. 

II D 1. As between the United States and a State, the soil of 
the bed of navigable waters and of the shores of tide waters below 
high-water mark, or — on rivers not reached by the tide — ^the soil 
of the shores below the ordinary water line (as not affected by freshet 
or unusual drought), belongs to the State. But natural accretions 
to land owned by private individuals belong to the owners of the 
land .2 Thus, Jield that the accretions to Hog Island in the mouth 
of the Missouri River belonged, not to the United States or to the 
State of Missouri, but to the owner of the island. R. 51, 636, Mar., 
1887. 

II E. Held that the granite monument erected by the United 
States, under an appropriation by Congress for the purpose, on land 
belonging to the State at Newburgh, N. Y., and known as Washing- 
ton's Headquarters, became, in the absence of any provision in the 
statute or agreement with the State, the property, as a fixed improve- 
ment, of that State. P. 49, 20, Aug., 1891. 

II E 1 . Held that the principle that buildings erected on the land 
of another without his consent become his property, did not apply to 
buildings erected by the United States on land occupied jure oelli by 
the Army in an enemy's country; but that, on subsequently surrender- 
ing the land to the owner, the military authorities might legally 

' Storer v. Freeman, 6 Mass. 435. 

" As to change of boundary by gradual erosion or accretion, see Philadelphia Co. v. 
Stimeon, 223 U. S., 605. 



PUBLIC PROPERTY II E 2. 921 

remove and retain or dispose of the buildings. R. 35, 565, Sept., 
1875. 

II E 2. Temporary buildings erected by military orders on land 
of the United States at a military post, to serve only a temporary 
purpose, are in general personal property of the United States which 
may be removed by the direction or authority of the Secretary of 
War.^ But if the same be permanent structures and real estate, the 
authority of Congress is necessary to their removal. P. 58, 162, 
Feb., 1893. 

II E 3. Where a post commander, without authority, took pos- 
session of land of the United States, for the purpose of erecting there- 
on a building for his pei'sonal use, and havmg erected it assumed to 
hold and dispose of it as his own property, held that his act was 
unauthorized and illegal, and that he acquired no legal estate in the 
building. And similarly heM where, without authority, he permitted 
an enlisted man of his command to use land of the United States for 
the erection thereon of a dwelling and to hold and dispose of such 
dwelling as his own property. P. 63, 6Ji., Dec, 1893. 

II E 4. Under contract for the purchase of the required amount 
of land for a military reservation for the amount available in the 
appropriation, it became necessary to have a small portion of the 
lands condemned, and the cost of the land condemned and of the con- 
demnation proceedings were deducted from the contract price and 
settlement made under the contract on that basis. On the claim for 
compensation for the buildings and for the use of the same on the 
tract condemned, said contract having reserved the improvements, 
held that under the condemnation proceedings the Government ac- 
quired the legal title to the buildings but that the equitable title 
was in the other party to the contract. C. 2952, Feb. 20, 1897, Dec. 
7, 1898, June 13 and Oct. 11, 1901. 

II F. Wood growing on a military reservation is the property of 
the United States. So, held that a contractor who cut such wood to 
fill a contract made by him with the United States to furnish wood 
to a military post could not legally be allowed to remove or dispose 
of the same as his own property. P. ^8, 218, July, 1891. 

II F 1. Held that the act of March 3, 1875, c. 151, "to protect orna- 
mental and other trees on Government reservations and on lands pur- 
chased by the United States," etc., which makes penal the unlawful 
cutting or injuring of such trees, was clearly not intended to, and did 
not, preclude the reasonable cutting of wood on military reservations, 
under the direction of the proper officer, for the supplying of the nec- 
essary fuel for the garrisons stationed thereon ; the authority to estab- 
lish a reservation, where in fact lawfully existing, being deemed to 
include an authority to ellficiently maintain the same when established. 
R. 39, 8, May, 1876; C. 20531, ^Oct. 15, 1906. 

III A. A reservation may be defined as a portion of the public lands 
of the United States which is withdrawn from the operation of the 
land laws and set apart by Congress or by the President under author- 
ity of law for some administrative purpose. ^ C. 16691, Sept. 10, 1902. 

' But such buildings can not be sold without the authoritj^ of Congress. Lear v 
U.S., 50 Fed. Rep., 65. 
2 See 7 Op. Atty. Gen., 571, 574; Grisar v. MacDowell (6 Wall., 363, 381). 



922 PUBLIC PEOPEBTY III A 1. 

Ill A 1. A military reservation, being simply territory of the 
United States withdrawn from sale, preemption, etc.,^ the mere fact of 
the establishing of such a reservation can not affect the power of the 
State or Territorial authorities (according as it may be located in a 
State or Territory) to serve civil or criminal process therin, or to 
attach or levy upon personal property ^ except in so far of course as 
such service may be specially precluded or restricted, by law, as to 

^ The Constitution (Art. IV, sec. 3, par. 2) has vested in Congress the exclusive power 
"to dispose of and make all needful rules and regulations respecting the territory" 
(held in U. S. v. Gratiot, 14 Peters, 537, to mean "lands") "or other property belong- 
ing to the United States. " As a consequence perhaps of the indefmiteness of this grant 
(see 7 Op. Atty. Gen., 574) no general enactment providing for the setting apart of 
land for military reservations has ever been made by Congress. In a few cases, indeed, 
a special authority to establish a military reserve has been conferred upon the Presi- 
dent by statute, but the great majority of the military reservations heretofore located 
or now existing have been made by the President without any such specific authority 
whatever. But though no general authority has been directly given by Congress for 
the reserving of lands for military purposes, an authority for the piu-pose has been 
deemed to exist, and this authority is found in the usage of the executive department 
of the Government, as indirectly sanctioned by Congress in repeated preemption acts, 
acts relating to the siu-vey of the public domain, appropriation acts, &c., in which 
lands reserved for military purposes by the President have been in general terms 
excepted from sale, exempted from entry, &c., or special provision has been made for 
the cost of improvements to be erected upon the same. In Grisar u. MacDowell, 6 Wal- 
lace, 381, the U. S. Supreme Court, by Field, J., observes: "From an early period in 
the history of the Government, it has been the practice of the President to order, from 
time to time, as the exigencies of the public service required, parcels of land belonging 
to the United States to be reserved from sale and set apart for public uses. The author- 
ity of the President in this respect is recognized in numerous acts of Congress." The 
coiu*t then cites several statutes as containing this recognition, includingthe preemption 
acts of May 29, 1830, and Sept. 4, 1841, and adds: "The action of the President in the 
making the (military) reservations" (the title to which was at issue in the particular 
case) "was indirectly approved by the legislation of Congress in appropriating moneys 
for the construction of fortifications and other public works upon them." And see 12 
Op. Atty. Gen., 381; 14 id., 182; 17 id., 258; Wilcox v. Jackson, 13 Peters, 512; U. S. 
v. Hare, 4 Sawyer, 653; also U. S. v. R. R. Bridge Co., 6 McLean, 617; 1 Land Dec. 
(Int. Dept.) 30,702; 6 id., 18, 317; 13 id., 426, 607, 628; 8 Fed. Rep., 883; 12 id., 449; 
92 U. S., 733; 101 id., 768; 5 Wall., 681. The President, in setting apart land, is 
regarded as acting under authority of Congress. 1 Land Dec. 30. 

It is moreover to be noted that the provision of the act of 1841, referred to by the 
Supreme Court, has been incorporated as a general enactment in the Revised Statutes, 
in the chapter (Ch. 4 of Title XXXII) on preemptions, sec. 2258 expressly excepting 
from the lands of the United States "subject to the rights of preemption" — "lands 
included in any reservation by any treaty, law, or proclamation of the President for any 
pm-pose." And see sec. 2393, specifically excepting military reservations from the 
operation of the laws authorizing the establishing of town sites. 

The "proclamation" of the President reserving lands for military purposes is usu- 
ally in the form of a military general order, issued by the Secretary of War, whose 
act in this, as in other administrative proceedings pertaining to the military adminis- 
tration, is in legal contemplation the act of the President whom he represents. But 
no head of a department or executive official inferior to the President can, of his own 
authority, make a reservation of public lands. The power is vested only in Congress 
and the President. United States v. Hare, 4 Sawyer, 653, 669. 

In this connection may be noted the ruling of Atty. Gen. Bates (10 Op., 359) in 
opposition to that of Justice McLean of the Supreme Court (in United States v. The 
Railroad Bridge Co., 6 McLean, 517), but apparently concurred in by Atty. Gen. 
Williams (14 Op., 246), to the effect that where a tract of land of the United States 
has once been legally reserved for military purposes the President is not empowered, 
in the absence of authority from Congress, to relinquish such reservation and restore 
the land reserved to the general body of the public lands. See also, 2 Land Dec. (Int. 
Dept.) 603, 606; 5 id. ,.632; 6 id., 19. 

2 See opinion of Judge Advocate General published in G. 0. 30, Hdqra. of Army, 
1878. 



PUBLIC PROPERTY III A 2. 923 

military persons in general.^ Where indeed there has been a cession 
of exclusive jurisdiction over the land by the State to the United 
States, the question whether the State authorities may still serve 
process withm the reservation on account of liabilities incurred or 
crimes committed outside of its limits, will depend upon the terms of 
the cession.2 R. 39, 541, May, 1878; G. 16691, Sept. 20, 1902. Aug. 
5, 1904. 

Ill A 2. An order reserving lands for public purposes is inoperative 
as to lands which were not, at the time of its issue, subject to reserva- 
tion, i. e., lands which were not then public lands.^ C. 5951, Mar. 11 , 
1899. Held, therefore, that an Executive order making a reservation 
would be void and inoperative as to lands in lawful private owner- 
ship. C. 12851, June 24, 1902; 16691, Sept. 10, 1902; 16653, July 
28, 1904. 

Ill A 3. Where lands within the exterior limits of a military 
reservation have been set apart by the President as a wood reser- 
vation for a mihtary post, held that the lands passed under the juris- 
diction of the War Department and that no jurisdiction over them 
remained in the Interior Department for any purpose. C. 2642, 
Oct. 8, 1896 and Oct. 8, 1901. 

Ill A 4. Held, with reference to the estabhshment of a military 
post within the limits of the Chickamauga and Chattanooga National 
Military Park, that in view of the act of May 15, 1896 (29 Stat. 120), 
authorizing the park, in the discretion of the Secretary of War, to be 
used for maneuvering purposes, and the desirability of a garrison for 
the protection of the park, it would be permissible to select a portion 
of the park, not included in the scheme of marking the Unes of battle, 
upon which to locate buildings for the accommodation of a regiment 
of Cavalry. C. 12895, June 30, 1902. 

Ill A 5. Under the treaty with Spain the ownership of all pubhc 
buildings and lands witliin Porto Rico, the Phihppine Islands, and 
elsewhere, was transferred to the United States, and under the act 
of July 1, 1902 (32 Stat. 731), the President was expressly authorized 
to maKe reservations of public lands in Porto Rico for public purposes 
witliin one year after the approval of that act, after which all public 
lands not so reserved, with certain exceptions, passed to the owner- 
ship of the Government of Porto Rico; and by section 12 of the act 

'As by sec. 1237, R. S., exempting enlisted men from arrest Tor certain debts; or by 
the operation of the provisions of the 59th Article of War as to the /on?i to be observed 
in making criminal arrests of military persons. 

^ See 7 Op. Atty. Gen., 574-5; also 14 id., 557. That it is "not open to the courts 
on a question of jurisdiction to inquire what may be the actual uses to which any por- 
tion of the reserve is temporarily put." See Benson v. U. S., 146 U. S., 331. 

^ Where an applicant has complied with the requisites of the preemption laws so 
that his right has accrued under such laws, no reservation or appropriation of the land 
for public pui-poses thereafter can defeat his rights. United States v. Fitzgerald 
(15 ret., 407). "A mere entry upon land, with continued occupancy and improve- 
ment thereof, gives no vested interest in it. It may, however, give under our national 
land system privilege of preemption. But this is only a privilege conferred on settlers, 
to purchase the land in preference to others. * * * His settlement protects him 
from intrusion or purchase by others, but confers no right against the Government." 
10 Op. Atty. Gen., 57. These views were cited with approval by the Supreme Court 
in Frisbie v. Whitney (9 Wall., 187), where the Court expressly held that "a vested 
right, under the preemption laws, is only obtained when the purchase money has been 
paid, and the receipt of the proper land officer given to the purchaser." See also 
Yosemite Valley case (15 Wall., 77) and Shiver v. United States (169 U. S., 491). 



924 PUBLIC PROPERTY III B. 

of July 1, 1902 (32 Stat. 695), ail public lands in the Philippine 
Islands, except such lands or other property "as shall be designated 
by the President of the United States for military and other reser- 
vations," were placed under the control of the Government of said 
islands to be administered for the benefit of the inhabitants thereof. 
Advised that steps be taken to have the required reservations made. 
a 16691, Sept. 10, 1902. 

Ill B. Held that the right to the "free and open exploration and 
purchase" of mineral lands, accorded to citizens, etc., by section 
2319, R. S., could not authorize an entry for the purpose of pros- 
pecting for mmes upon a military reservation once duly defuiea and 
established by the President; the mineral lands intended by the 
statute being clearly such as are included within the "public lands" 
of the United States. R. S8, 696, May, 1877; C. 10727, June 22, 1901 . 
. Ill C. Held that an act of Congress granting a railroad company a 
right of way through "the public lands" of the United States, did not 
authorize it to enter and construct a track upon the soil of a military 
reservation, the same being no part of the "public lands" ; ^ and that 
such entry was therefore a trespass. R. 39, 1^6, Aug., 1877. Simi- 
larly held where the acts granted rights of way through the Indian 
Territory and Indian reservations, lands and allotments. C. 684O, 
Sept., 1899; 7572, Feb., 1900. 

Ill D. Land which has been set apart as a portion of an Indian 
reservation under a treaty can not be occupied as a military reserve; ^ 
nor can even a military post be maintained thereon, in derogation of 
the terms of the treaty or against the consent of the Interior Depart- 
ment. R. 38, 179, July, 1876; C. 3342, July 9, 1897. 

Ill E. In locating Fort Missoula, Mont., an error of survey was 
made by which the post became established upon a section which had 
been granted to the State by the enabling act as school land, instead 
of upon the contiguous section which had been reserved for mihtary 
purposes. Recommended, as the preferable mode of rectifying the 
error, that legislation of Congress oe obtained gi'anting to the State 
for school land the section omitted to be occupied, and, upon its 
acceptance by the State, that the legislature then cede to the united 
States exclusive jurisdiction over the section actually occupied by the 
■post. P. 36, 402, Nov., 1889; U, 299, Bee, 1890. 

Ill F 1. The President's power in the matter of mihtary reser- 
vations is limited to the setting apart and declaring of the reserva- 
tion; and, for the purpose of adding to, and modifying the boundaries 
of, the original reserved tract, a reservation may be redeclared by 
the Executive. P. 39, 132, Feb., 1890; 50, 108, Oct., 1891. But the 
President can not unreserve duly reserved lands, either by revoking 
the order of reservation or otherwise.^ P. 50, 108, supra; C. 16691, 
Sept. 10, 1902. 

1 Wilcox V. Jackson, 13 Peters, 499, 513; 5 Op. Atty. Gen. 578; 6 id., 670; 7 id., 574. 
See, also, Scott v. Carew, 196 U. S., 100; and 38 Land Dec, 496. 

2 By Art. VI, par. 2, of the Constitution "all treaties made * * * under the 
authority of the United States" are declared to be "the supreme law of the land"; 
and Indian reservations " have generally been made through the exercise of the treaty 
making power, and the fulfillment of treaty obligations." 14 Op. Atty. Gen., 182. 
That land can not be reserved or occupied for militarjr purposes to the prejudice of a 
title previously vested in an individual or a corporation, see, further, 9 id., 339; 13 
id., 469. 

» See 10 Op. Atty. Gen., 363, 366; 16 id., 123. See Public Property, II A 1, foot- 
note. 



PUBLIC PROPERTY III F 2. 925 

III F,2. Where conflicting claims, not clearly groundless, were 
made by several persons to the title to a portion of a military reser- 
vation, advised that the Secretary do not attempt to pass upon the 
questions involved, but refer the parties to the courts for their legal 
remedies. R. 30, 72, Feb., 1870. 

Ill F 3. Lands once duly reserved for a public purpose become 
separated from the mass of public lands, and the President, in the 
absence of authority from Congress, is not empowered to restore 
them to their original status. So, held, that a proclamation of the 
President, issued under an act of Congress opening to settlement 
lands in Oklahoma Territory, could not embrace or affect land 
previously duly reserved as a military timber reservation for the 
use of the post of Fort Reno.^ P. 21, 327, Apr., 1889. Also held 
that under the act of July 5, 1884 (23 Stat. 103), he may place lands 
which have become useless for military purposes under the control 
of the Secretary of the Interior for disposition and sale as therein 
authorized.2 P. 48, 10, June, 1891; C. 1839, Nov., 1895. 

Where it was proposed to turn over to the Interior Department, 
under the act of July 5, 1884 (23 Stat. 103), a military reservation 
as "useless for military purposes," but subject to the provisions of 
a contract permitting a contractor to take therefrom 2,000 cords 
of wood, for a military post, advised that the transfer be deferred 
until the contract was performed, the reservation not being ''useless 
for military purposes," during the existence of the contract, and 
furthermore such contract might interfere with the sale of the land 
by the Interior Department. C. 5{, July, 1894; 20531, Oct. 15, 1906. 

Ill F 4. The power of the President, under the provision of the 
act of March 3, 1893 (27 Stat. 593), to "withhold from sale, and to 
^rant for public use to municipal corporations in which the same 
IS situated, all or any portion of any abandoned military reservation 
not exceeding twenty acres in one place," extends only to such 
abandoned military reservations or parts of abandoned military 
reservations as have been turned over by the Secretary of War to 
the Secretary of the Interior under the act of July 5, 1884. P. 58, 
471, Apr., 1893. 

Ill F 5. Held, with reference to the proposed sale of Columbus 
Barracks, Ohio, under the act of June 30, 1902 (32 Stat. 515), as 
amended by the act of April 28, 1904, that as section 3618 R. S., as 
amended by the act of June 8, 1896 (29 Stat. 268), regulating the 
disposition of the proceeds of sales of "old material, condemned 
stores, suppUes, or other public property oj any Mnd," requires the 
"net proceeds" only to be deposited m the Treasury, any proper 
expense connected with the appraisement and sale of the military 
reservation would be defrayed out of the sum realized from the sale 

1 See 14 Land Dec, 233. See, howevei;, 27 Fed. Case, 687 (U. S. v. Railroad 
Bridge Co.); also 10 Op. Atty. Gen., 360, and 14 id., 244. 

^ That lands turned over under the act of July 5, 1884, can not be disposed of under 
the general law regarding the disposition of public lands, and that the President 
can not restore them to entry and settlement, see 5 Land Dec, 632; 6 id., 19; 14 id., 
210; 27 id., 82; 30 id., 301. That a reservation acquired by purchase, in a State where 
there are no public lands, if abandoned should be disposed of under the act of July 
5, 1884, see 3 Land Dec, 577. Under the practice, ati order placing lands under 
the control of the Secretary of the Interior, under the act of July 5, 1884, may be 
revoked and the lands again withdrawn for military purposes. Such action was 
taken with respect to the military reservations of Fort Keogh, Mont.; Fort Town- 
eend. Wash.; Fort Walla Walla, Wash., etc. As to reservation of lands turned over 
under act of July 5, 1884 for purposes of a National Forest, see 36 Land Dec, 342. 



926 PUBLIC PROPERTY III F 6. 

of the reservation. Cards 14693, May 22, 1903; 16394, May 31, 
1904. Similarly Tield, with reference to the disposition of a portion 
of the Fort Gaines Military Reservation, Ala.» C. 22573, May 
13, 1911. 

Ill F 6. Held that, the land laws not being applicable in the 
Philippine Islands, if military reservations there are abandoned the 
land reverts to the control of the Philippines Commission. C. 
25558, Oct. 4, 1910. 

Ill G 1. The ownership and jurisdiction of the soil between high 
and low water mark on navigable waters within or bordering upon a 
State are vested in the State, not in the United States. Tidelands 
belong to the State only; the United States has no interest in the 
soil below high-water mark other than such as may have been ceded 
by the State.^' R. 47, 596, Feb., 1886; P. 15, 452, Mar., 1887.^ So, 
where a military reservation within a State fronted upon navigable 
waters of the United States, at the mouth of the Columbia River, 
held that the military authorities could not, by the removal of fishing 
nets or fish traps placed below high-water mark or otherv/ise, legally 
prevent or interfere with the exercise of the right of fishery as to 
scale or shell fish on the tidelands; such right being common to all 
citizens except in so far as it may be abridged by the State.^ R. 52, 
137, Mar., 1887. 

Ill G 2. In the case of a Territory, the sovereign right to the whole 
soil is exclusively in the United States. Thus the reservation of an 
island in the tidewaters of a Territory includes not only its soil down 
to high-water mark but all its tidelands also. R. 4'^, 596, Feb., 1886. 
But in a Territory, in the absence of special regulation of the subject 
by Congress, no executive authority can lawfully restrict the common- 
law right of piscary of the inhabitants (including the taking of shell- 
fish) in the tidewaters of the Territory. So, the commander of a 
reserved military post fronting upon navigable water of a Territory is 
not empowered to remove from such tidewaters the seines or traps of 
fishermen; though if the public interests require it he may forbid or 
restrict the use of the shore above high-water mark for the hauling of 
seines or landing of fish. P. 15, 452, Mar., 1887. 

Ill H 1. Squatters and other trespassers and intruders may and 
should be expelled, by military force if necessary, from a military 
reservation." R. 49, 208, July, 1885; 50, 314, May, 1886. But such 
persons when they have been suffered to own and occupy buildings 
on a reservation should be allowed reasonable time to remove them. 
If not removed after due notice the same should be removed by the 
military. Material abandoned on a reservation by a trespasser on 
vacating may lawfully be utilized by the commander for completing 
roads, walks, etc. R. 50, 273, 378, May and June, 1886. Squatters 
on United States reservations (timbered) may also be forced there- 
from by criminal proceedings had" under section 5388, R. S., or ejected 

» See pars. 1251 and 1253, Dig. 2d Comp. Dec, vol. 3. 

^ Pollard's Lessees v. Hagan, 3 Howard, 212; Goodtitle v. Kibbe, 9 id., 477; Doe v. 
Beebe, 13 id., 25; 6 Opins. At. Gen., 172. 

^Washburn, Easements and Servitudes, 410; Martin v. Waddell, 16 Peters, 367; 
Smith V. Maryland, 18 Howard, 71; McCready v. Virginia, 94 U. S., 391; Lay v. King, 
5 Day, 72; Arnold v. Mundy, 1 Halst., 1; Parker v. Cutler, etc., Co., 20 Maine, 353: 
Moulton V. Libbey, 37 id., 472; Weston v. Sampson, 8 Cush., 347. 

* See G. 0. 62 of 1869. 



PUBLIC PROPERTY III H 2. 927 

by civil action. C. 138, Sept., 1894; 12941, July 16, 1902; 16983, 
Oct. 8, 1904. 

Ill H 2. Wliere squatters have made any considerable improve- 
ments upon a reservation, and their value has been duly estimated — 
as by a board constituted by the department commander and pre- 
senting in its report all the evidence on the subject — an award by the 
Secretary of War, acquiesced in by the claimant, may be sued upon 
in the Court of Claims, which (in the absence of evidence of fraud or 
mistake) will accept such award as conclusive.^ P. 17, 265, June, 
1887; C. 12941, July 16, 1902; 16983, Oct. 8,1904; 24196, Dec, 1908. 

Ill H 3. The cutting of timber on a military reservation is an 
offense against the United States, made punishable by section 5388, 
R. S. (amended by the act of June 4, 1888), and by the act of ^larch 3, 
1875, chapter 151. So, grass cut on a reservation and removed as hay 
would be personal property of which the asportation would be larceny 
under the act of March 3, 1875, chapter 144. And persons coming upon 
a military reservation for the purpose of cutting wood or grass or to 
plow up the soil, or commit other trespass, va.dij be removed as 
intruders, and the post commander should not hesitate to resort to 
military force if necessary for the purpose. And he may of course 
prevent such trespassers from carrying off with them any property of 
the United States. P. 64, 270, 303, Mar. and Apr., 1894; C. 3315, 
June, 1897; 16983, Oct. 8, 1904; 20531, Oct. 15, 1906; 20544, Oct. 18 
and Nov. 20, 1906; 20818, Dec. 22, 1906. 

Ill H 4. The general principle of the authority to remove tres- 
passers, their structures and property, from land oi the United States 
embraced in a military reservation, held specially applicable where the 
intrusion was for an injurious purpose, as where the object was to lay 
a sewer intended to discharge into a main sewer constructed by the 
United States upon and for the use of its own premises. In this 
instance, as the trespass was committed by the authorities of a munici- 
pality, advised that reasonable notice be given them to remove their 
property before resorting to military force for the purpose, and mean- 
time that precautions be taken to prevent a connection between the 
proposed sewer and the sewers under the control of the United States. 
P. 65, 6, May, 1894. 

III H 5. Held that a butcher who was under contract with the 
United States to supply beef to the post of Fort BrowTi, Tex., should 
not be permitted to sell beef on the reservation to citizens of the 
town, to the prejudice of the butchers doing business there. Such a 
party is not a post trader, and Congress, in providing specifically for 
post traders, would seem to have considered legislation necessary 
to authorize an individual to engage in trade or traffic at a military 
post. P. 30, 475, Mar., 1889. 

IV A 1 a. Sections 4870-4872, R. S., constitute the only existing 
general law authorizing the purchase or acquisition of land as ceme 
tery grounds for the interment of soldiers. The general provision on 
the subject, of section 18 of the act of July 17, 1862, c. 200, has ceased 
to be in force under the operation of section 5596 of the repealing 
provisions of the Revised Statutes. P. 32, 261, May, 1889. And 
where is was proposed to donate land for a right of way to a national 
cemetery on condition that the United States build the road and a 

» Maddox v. U. S., 20 Ct. Cls., 193, 199. 



928 PUBLIC PROPEETY IV A 1 a (l). 

substantial wire fence with gates, etc., held that the authority given 
by the sections to purchase the property inckides the authority to 
accept title by donation; that the authority to acquire the site could 
be construed as including the authority to acquire the right of way 
thereto; but that the condition of the proposed donation would 
preclude its acceptance. C. 122^2, Mar. 25, 1902. 

IV A 1 a (1). To authorize the acquisition, by the exercise of the 
right of eminent domain, of private land for a national cemetery 
under sections 4870 and 4871, R. S., there must be (1) an existing 
appropriation (in conformity with the rule of section 373G, R. S.) 
authorizing the acquisition; and (2) the private owner must be 
unwilling to give title or the Secretary of War be unable to agree 
with him as to price. P. 32, 277, May, 1889. 

IV A 1 a (2). The appraisement of land for a national cemetery, 
as duly made by a United States court under sections 4871 and 4872, 
R. S., is conclusive upon the Secretary of War, who rnust thereupon 
pay the appraised value as indicated in the latter section. If indeed 
there has hesen fraud in the valuation by which the court has been 
deceived in its decree, or its original appraisement is deemed excessive, 
it may properly be moved for a new appraisement on the part of the 
United States.^ R. 26, 617, June, 1868. 

IV A 1 b. The Government is under no legal obhgation to provide 
burial places for destitute soldiers at a volunteer home. Section 
4878, R. S., in providing that the soldiers, etc., there designated, 
"may be buried in any national cemetery free of cost," does not 
require the establishment of a national cemetery specially for the 
purpose of interments at such a home. P. 32, 277, May, 1889. 

IV A 2 a. The sundry civil act of March 3, 1899 (30 Stat. 1108), 
contains the provision "that no railroad shall be permitted upon the 
right of way which may have been acquired by the United States 
to a national cemetery or to encroach upon any roads or walks 
constructed thereon and maintained by the United States." Held 
that this provision was intended to prevent the occupation of and 
encroachment upon the rights of way or roads named therein, but 
did not forbid the granting of permission to lay a raiboad track 
across a Government roadway leading to a national cemetery. C. 
7466, Dec, 1899. 

IV A 2 b. With reference to the authority to regulate the speed of 
vehicles on the roadway of the national cemetery at Vicksburg, Miss., 
Jield that in the absence of any cession of jurisdiction over the road- 
way it would be under the police jurisdiction of the local authorities 
as to offenses committed thereon, but that there was no objection to 
posting notice that violations of the local laws regarding speed limits 
wouldbe punished as prescribed therein, and to bringing to the at- 
tention of the proper local authorities any violations of such notice. 
C. 26691, Sept. 2,1910. 

IV A 2 c. On the question whether the restriction in the appro- 
priation for roadways to national cemeteries: "That no part of this 
sum shall be used for repairing any roadway witliin the corporate limits 
of any State, town, or village," should be considered as an abandon- 
ment of a portion of the Government roadway to the Salisbury (N. C.) 
National Cemetery, the title in fee being in the United States, Tield 

1 See 14 Op. Atty. Gen., 27. 



PUBLIC PROPERTY IV A 3 a. 929 

that the law regarding the divestm^ of title by abandonment applies 
where the title is of an easement only, but has no application to a fee 
simple title. C. 26103, Jan. 20, 1910. 

IV A 3 a. Superintendents of national cemeteries are no part of the 
Army, but civilians, being required indeed by section 4874, K.S., to be 
selected from persons who have been honorably discharged from the 
militaiy service. They are therefore, of course, not subject to the 
Ai'ticles of War or to trial by court-martial; ^ and, for any serious mis- 
conduct on the part of a superintendent, a removal from office would 
be the only adequate remedy. R. 35, 34, Oct., 1873; 38, 381, Nov., 
1876; 577, Apr., 1877. 

IV A 3 b. By section 4881, R. S., the superintendent of a national 
cemetery is authorized to arrest pereons who injure, etc., gravestones, 
trees, shi'ubs, etc., within the cemetery. Held that he could not, under 
this authority, legally arrest a person who fired a ^un into or across 
the cemeteiy without causing any such injury as is specified in the 
statute, but, for the arrest and punishment of such a trespasser, must 
have recourse to the local authorities. R. 32, 425, Mar., 1872. 

IV A 3 c. Held that the Secretary of War might legally make rules 
for the use of roads within national cemeteries and for the rates of 
speed thereon, and that any regulations so promulgated might be 
executed by the superintendent under the authority of section 4873 
R. S. C, 26691, May 10, 1911. 

IV A 4. Under section 4878 R. S. and the act of March 3, 1897 (29 
Stat. 625), the following classes of persons are entitled to interment 
in a national cemetery: 

(1) Officers and enlisted men who served in the Regular or Volunteer 
Ai"my or Navy during the Civil War, 

(2) Officers and enlisted men who served in the Regular or Voluiiteer 
Ai'my or Navy during the War with Spain. 

(3) Army nurses who have been honorably discharged from such 
employment without regard to the time or place of service. 

(4) Officers and enhsted men of the Army and Navy who died 
while in the military service. 

Held where certain lots were assigned for the burial of officers, 
particularly at Arlington, Va., that under the precedents there was 
no objection to permitting the interment of the remains of the wife or 
minor children of the officer to whom the lot had been assigned. C. 
16508, June 22, 1904. 

IV A 4 a. Under the act of March 3, 1897, providing for the inter- 
ment of deceased Army nurses honorably discharged as such, held 
that the services of the contract surgeon charged with the duty of 
superintending the organization of Army nurses during the Spanish 
War — a duty substantially that of superintendent of the Army Nurse 
Corps (a position subsequently made a part of the Army Nurse Corps 
by sec. 19 of the act of Feb. 2, 1901) — whUe not within a literal 
description of the statute, were of such a character as would justify 
the Secretary of War in placing such a liberal construction upon the 
law as would permit of the assignment of a lot for her future inter- 
ment. C. 29060, Oct. 5, 1911. 

' See the subsequent opinion, concurring in this view, of the Attorney General, in 
16 Op. 13. 

93673°— 17 59 



930 PUBLIC PEOPERTY IV A 4 b. 

IV A 4 b. Under the appropriation for the burial of ex-Union 
soldiers, sailors, and marines of the Civil War and of the War with 
Spain ''who die in the District of Columbia, or in the immediate 
vicinity thereof," held that the words "immediate vicinity" should be 
interpreted in a reasonable sense, and as including the towns, etc., 
which lie near the District boundaries, and whose inhibitants are 
employed in the District or regard it as the center of their business 
relations; and that it would be proper to include all those towns, etc., 
which are within a distance of 10 miles of the District line.^ C. 16396, 
June 6, 1904. 

IV A 4 c. On the question of whether officers and enlisted men of 
the Revenue Marine Service are entitled to interment in the several 
national cemeteries, held that under ordinary conditions the Revenue 
Cutter Service is not a part of the constitutional military or naval 
service of the United States, but is a part of the civil establishment, 
and as such its members are not entitled to interment in a national 
cemetery. C. 19774, Oct. 26 and Nov. 25, 1910. Held, however, that 
when cooperating with the Navy, under sections 1492 and 2757, R. S., 
they are to be considered, during such service, a part of the Navy, 
and as such entitled to be buried in a national cemetery.^ C. 19774, 
May 24, 1906; Nov. 25, 1910. 

IV B. The act of March 9, 1906 (34 Stat. 56), to provide for the 
appropriate marking of the graves of the soldiers and sailors of the 
Confederate Army and Navy who died in Northern prisons, etc., 
authorized the Secretary of War "to acquire possession or control" 
of such burial places, and emjjowered him "to cause to be erected 
over said graves white marble headstones, * * * to build i)ro])er 
fencing for the preservation of said bmial grounds, and to care for 
said burial groimds in all })roper respects not herein specilically 
mentioned." Held, the Secretary had authority to erect headstones 
in the Johnsons Island Confederate cemetery, and to cause the same 
to be inclosed by a suitable fence, without acquiring the ownership of 
the land constituting the cemetery. C. 19834, Apr., 1907, and Mar., 
1908. Held, further, that the a])j)ropriation under above act covered 
all necessary and ]>r()])er expenses of the commissioner in immediate 
charge of the woik and authorized him and a stenographer to visit 
the places falling within the scope of the act. 0. 19834, June, 1906. 
Held, further, that above act authorizes the Secretary to empower the 
commissioner to employ an architect to design the fencing and attend 
to its construction, and pay him the usual com])ensation. C. 19834, 
July, 1907. Held, further, although it was contemplated by the act 
in question that a headstone should be erected over the grave of each 
soldier and sailor, yet if it was now impossible to identify the graves 
of individuals, that in view of the ])ur])ose and nature of the act the 
most complete execution possible should be given to the statute, and 
that a suitable monument to the unidentified dead might be erected 
on the location of their burial. G. 19834, Nov., 1908. 

IV B 1. On the question of whether the Secretary of War might 
authorize the burial, in the Confederate section of the Arlington 
National Cemetery (which section was set apart for the interment, 
under the act of June 6, 1900, 31 Stat. 630, of the remains of Con- 

» See Langlev v. Birnsted (()3 N. H., 246); Timmerman v. Dever (52 Mich., 56). 
2 See 19 Op. Atty. Gen., 505; 27 id., 8. 



PUBLIC PROPERTY V. 931 

federate soldiers buried in certain otlier places), of Confederate 
veterans dying in the District of Columbia or vicinity, held that while 
the plot might be rearranged to receive the additional remains, the 
purposes for which national cemeteries can be used have been pre- 
scribed by statute; that where Confederate dead have been interred 
there has been express authority therefor; and that the Secretary of 
War could not legally permit any such burials in the absence of a 
statute authorizing the same. C. 2877 4, July 29, 1911. 

V. Jurisdiction over territory in a State may be acquired by the 
United States, under the seventeenth clause of section 8 of article 1 
of the Constitution, by the purchase of such territoiy, with the con- 
sent of the State, "for the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings." The Constitution gives Congress 
the power of exercising exclusive legislation over such place, and this 
is held to mean exclusive jurisdiction. The State's consent to the 
purchase for any one of these constitutional purposes mvests the 
United States with exclusive jurisdiction, and the State can not, even 
by the express language of its legislation, reserve to itself any part of 
this jurisdiction. (The reservation of the right of serving process for 
causes of action arising outside such territory is not held to be an 
actual reservation of a part of the exclusive jurisdiction intended to 
be vested in the United States.) But it would seem that this is only 
true when the purchase is for one of the constitutional purposes. By 
correct construction, "other needful buildings" would mean build- 
ings of the same character as those specified — buildings intended for 
military or defensive purposes. A more comprehensive meaning has, 
indeed, been sometimes given to the expression, but no justification 
for such construction is found. In Pinckney's draft of a constitution 
there was tliis clause: "To provide such dockyards and arsenals, and 
erect such fortifications, as may he necessary for the United States, 
and to exercise exclusive juristliction therein." (This draft was sub- 
mitted May 29, 1787.) 

There was no corresponding provision in the Constitution reported 
by the committee of detail (Aug. 6), but the committee of 11, by 
report of September 5, recommended the adoption of the clause as it 
now reads, except that it did not have the words "by tlie consent of 
the legislature of the State." In the debate on the proposition, "Mr. 
Gerry contended that this power might be made use of to enslave any 
particular State by buying up its territory, and that the stronyholas 
proposed would be a means of awing the State into an undue obedience 
to the General Government. Mr. King himself thought the provision 
unnecessary, the power being already involved ; but would move to 
insert, after the word 'purchased,' the words, 'by the consent of the 
legislature of the State.' This would certainly make the power safe." 
(5 Elliot's Debates, 511.) 

And in the Federalist (No. 43) it is remarked: "Nor would it be 
proper for the places on which the security of the entire Union may 
depend to be in any degree dependent on a particular member of it. 

So Story remarks (sec. 1224): 

"The other part of the power, giving exclusive legislation over 
places ceded for the erection of forts, magazines, etc., seems still 
more necessary for the public convenience and safety. The public 
money expended on such places, and the public property deposited 



932 PUBLIC PKOPEETY V. 

in them, and the nature of the mihtary duties which may be required 
there, all demand that they should be exempted from State authority. 
In truth, it would be wholly improper that places on which the secu- 
rity of the entire Union may depend should be subjected to the control 
of any member of it. The power, indeed, is wholly unexceptionable, 
since it can only be exercised at the will of the State; and therefore is 
is placed beyond all reasonable scruple. Yet, it did not escape without 
the scrutinizing jealousy of the opponents of the Constitution, and 
was denounced as dangerous to State sovereignty." 

And, as observed by Judge Seaman (In re Kelly, 71 Fed. Rep., 
545,549): 

"The rule thus stated, whereby legislative consent operates as a 
complete cession, is applicable only to objects which are specified in 
the above provision, and can not be held to so operate, ipso facto, for 
objects not expressly included therein. Whether it rests in the dis- 
cretion of Congress to extend the provision to objects not specifically 
enumerated, although for national purposes, upon declaration as 
'needful buildings,' and thereby secure exclusive jurisdiction, is an 
inquiry not presented by this legislation (see 114 U. S., 541); and I 
think it can not be assumed by way of argument that such power is 
beyond question." 

In New Orleans v. U. S., 10 Pet., 662, 737, the opinion of the 
Supreme Court is expressed by Mr. Justice McLean, without dissent, 
as follows: 

"Special provision is made in the Constitution for the cession of 
jurisdiction from the States over places where the Federal Govern- 
ment shall establish forts or other military works. And it is only in 
these places, or in the Territories of the United States, where it can 
exercise a general jurisdiction." 

And, in U. S. v. Bevans, 3 Wheat., 336, 390, the claim was urged 
that the words "other place" would include a ship of war of the 
United States lying at anchor in Boston Harbor, and bring it witliin 
the statute denning murder committed "within any fort, arsenal, 
dockyard, magazine, or in any other place or district.of country under 
the sole jurisdiction of the United States;" but it was stated by the 
court, through Chief Justice Marshall, that "the construction seems 
irresistible that by the words 'other place' was intended another 
place of a similar character with those previously enumerated;" that 
"the context shows the mind of the legislature to have been fixed on 
territorial objects of a similar character." (See also The FederaHst, 
No. 43, by Madison.) 

Section 355, R. S., prescribes that no public money shall be ex- 
pended upon any site or land purchased by the United States for the 
purposes of erecting thereon any armory, arsenal, fort, fortification, 
navy yard, customhouse, lighthouse, or other building, of any kind 
whatever, until the * * * consent of the legislature of the State 
in which the land or site may be, to such purchase, has been given. 
This section is in part based on the clause of the Constitution referred 
to, and in part not. The consent of the State to a purchase, given in 
order to satisfy the requirement of this section, would invest the 
United States with exclusive jurisdiction, if the purchase be for one of 
the constitutional purposes; but the section provides for other pur- 
poses also, and as to these it would seem that a simple consent to the 



PUBLIC PROPERTY V A. 933 

purchase (assuming that such consent, being for a purpose not falhng 
under the clause of the Constitution, amounts to a cession of jurisdic- 
tion) would only carry with it so much jurisdiction as would be neces- 
sary for the purpose of the purchase. Probably this would be held to 
be concurrent jurisdiction. Taking into consideration the fact that 
States can not, under any circumstances, interfere with the mstru- 
mentalities of the Government of the United States, it may, indeed, 
be questioned whether, even under this view, unnecessary^ precautions 
have not been taken in regard to the acquisition of jurisdiction; and, 
certainly, it can not be presumed that a State intends to part wdth 
more of its sovereignty than is necessary. A consent to the purchase, 
under section 355, R. vS., if the purchase be for other than one of the 
purposes described in the clause of the Constitution, may, therefore, 
be accompanied with any limitations not interfering with an instru- 
mentahty of the Government of the United States. 

The most common way of acquiring jurisdiction, however, is by the 
State's expressly ceding it to the United States. In such case the 
State may make similar limitations, and this even if the place be used 
by the United States for one of the purposes mentioned in the clause 
ot the Constitution. To bring the case under the clause there must be 
a purchase with consent.* C. 1953, Dec, 1S95. 

V A. The mere fact of its being the owner of land situated ^vithin a 
State does not entitle the United States to exercise exclusive jurisdic- 
tion over the same or of offenses committed thereon,- nor does the fact 
that the land has been duly reserved for mihtary purposes confer such 
authority.^ Where the United States is the proprietor of the land at 
the time of the admission of the State, it may obtain such exclusive 
jurisdiction, by expressly reserving the same to itself in the act of 
admission. AVliere this has not been done, or where the land has been 
]>urchased or otherwise acquired by the United States subsequently to 
the admission of the State, exclusive jurisdiction over the same can be 
vested in the United States only by an act of cession of such jurisdic- 
tion on the part of the State, or by the State's giving its consent to the 
"purchase" by the United States. See the terms of the provision of 
clause 17, section 8, Article I, of the Constitution.* A mere consent 
by a State, through its legislature, to the "purchase" by the United 
States of land within its limits for any purpose covered bj' the clause 
of the Constitution cited is as operative for the purpose of vesting 

1 See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525, 539; Chioas;o & Pacific 
Ry. Co. V. McGlinu, 114 U. S., 542: Benson v. U. S., 14C U. S., 325, 331; In re Kelly, 
71 Fed. Rep., 545; In re Ladd, 74 id., 31. 

2 United States v. Stahl, 1 Woolworth, 192, and McCahon, 200; Kx parte Sloan, 4 
Sawyer, 330, 331, 332; Clay i'. State, 4 Kans., 49. Much less does the mere fact of its 
being the occupant of the land give it this authority — as where it occupies land as a 
camn. United States v. Tierney, 1 Bond, 571; Divine v. Unaka Nat. Bank (Tenn.), 
140 S. W., 747. 

^ See the first three cases cited in last note. The fact that the person against whofia 
the offense has been committed — as the person killed in a case of alleged murder — 
is an employee of the United States, adds nothing to its jurisdictional authority. Ex 
parte Sloan, supra. 

* That the term "exclusive legislation," employed in the Constitution, is equiva- 
lent to exclusive jurisdiction, or rather that exclusive jurisdiction is a necessary inci- 
dent of exclusiA'e legislation, see G Op. Atty. Gen., 577, 578; United States v. Cornell, 
2 Mason, 60; Ex parte Sloan, 4 Sawyer, 330. 



934 PUBLIC PROPERTY V D 1". 

the exclusive jurisdiction as is an express cession of the same.^ R. 1^2 y 
6U, 52J^, Mar., 1880; 43, 234, Feb., 1880, 

Held tliat notwithstanding the provision in section 4872, R. S 
that the jurisdiction of the United States over land taken for a 
national cemetery, by the right of eminent domain, "shall be exclu- 
sive," such a jurisdiction, where the land is within a State, can not 
be legally vested in the United States, except by the cession of the 
State legislature. In the absence of such cession on the part of the 
State sovereignty, an act of Congress must be powerless to confer such 
an authority .2 R. 27, 661, May, 1869. 

V D 1. Held that there was no occasion' for a statutory provision 
ceding back, or requiring the ceding back, of jurisdiction, by the 
United States to the State, when a military reservation was aban- 
doned and turned over to the Interior Department under the act of 
July 5, 1884 (23 Stat. 103). Such provision has sometimes appeared, 
as in the act of Congress of March 3, 1819 ("authorizing the sale of 
certain military sites"), as also in some of the State acts ceding 
jurisdiction, in which the grant is expressly limited to the period 
during which the premises may be held for public uses by the United 
States. But such provisions are deemed unnecessary, the jurisdic- 
tion ceasing of itself with the use and occupation of the land for the 
purposes for which it was granted. It is believed to be clearly inferable 
from the clause on the subject in the Constitution (Art. I, sec. 8, cl. 17) 
that the State rehnquishes its jurisdiction only for sucli term as the 
particular status subsists in contemplation of which it was ceded."* 
P. 43, 475, Nov., 1890; 0. 11668, Jan. 29, 1902. 

V D 1 a. Held that the act of Congress granting to the West Shore 
R. R. Co, a right of way across a part of the military reservation at 
West Point, N. Y., did not operate to oust, as to such way, the ex- 
clusive jurisdiction over the reservation previously ceded by the State 
to the United States. It simply imposed upon the military authori- 
ties the duty of not interfering with the legitimate use of its right by 
the railroad company. P. 41, 457, July, 1890; C. 14323, Mar. 27, 
1903. 

V E 1 a. A cession of jurisdiction by a State to the United States 
may be qualified or conditional, and concedes only so much as is 
specifically expressed.^ So held, that a reservation in the act ceding 
jurisdiction over the military reservation of Fort D. A. Russell, Wyo., 
of the power to tax persons and corporations therein, was constitu- 
tional and operative. C. 27365, Oct. 15, 1910. But a consent to pur- 
chase, as the term is intended in the constitutional provision (Art. 
I, sec. 8, cl. 17), conveys the whole or an exclusive jurisdiction where 
the purchase is for a purpose covered by such provision. So where a 
State legislature, in giving consent to a purchase for a purpose 
covered by said clause of the Constitution, couples with it a condi- 
tion or qualification inconsistent with the possession of exclusive 

1 See United States v. Cornell, 2 Mason, 60; 6 Op. Atty. Gen., 577, 578; 7 id., 628, 
629; 8 id., 30, 10-1, 387; 13 id., 411. A State may give such consent by a single general 
act, prospective in terms, and covering all cases of future purchases by the United 
States. Note, for examjtle, the act of the Legislature of Texas of Apr. 4, 1871 , remarked 
upon in the opinion of the Attorney General of Apr. 10, 1878 (15 Op., 480). 

^ See the subsequent opinion of the Atty. Gen. in 13 Op., 131. 

3 See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525. 



PUBLIC PROPERTY VEla(l). 935 

jurisdiction by the United States — as a condition that the State 
shall retain the same civil and criminal jurisdiction over persons and 
their property on the land that it has over other persons and property 
in the State, or shall retain the right to tax persons living on the land 
and their property — held, that the jurisdiction is not such as is 
designed by the Constitution, and can not legally be accepted by 
the United States.^ P. 59, 159, 4O8, Apr. and May, 1893; 63, 98, 
Dec, 1893; 64, 330, Apr., 1894. Wliere, however, consent was given 
to the purchase of lands for the Washington Aqueduct, in terms 
which authorized the United States to exercise, conciUTently with 
the State, "such jurisdiction over the premises as maj be necessary 
for the said purpose," held that the cession, being linuted to concur- 
rent jurisdiction with a State, did not exclude the authority of the 
local State officials to make arrests for offenses committed within the 
premises covered by the cession .^ O. 20606, Oct. 19, 1906, and June 7, 
1907. 

V E 1 a (1). Where a State statute, in ceding jurisdiction to the 
United States over certain lands piu'chased witliin the State by the 
authority of Congress as sites for public structures, added — "But 
the State reserves the right to execute process lawfidly issued under 
its authority within and upon said sites," etc., advised that such res- 
ervation might properly be regarded as having the same effect as that 
indicated by Attorne}- General Cushing in 8 Op., 3S7, viz, as reserving 
merely the right to serve process ivitfiin the lands for acts ilone and 
crimes committed without the same (so as to prevent them from becom- 
ing an asylum for fugitives from justice), and that the cession might 
therefore properly be acceptetl as sufficiently vesting in the United 
States the exclusive jurisdiction over the premises contemplated by 
the Constitution. R. 42, 567, Apr. 3, 1880; 43, 234, Feb., 1880; P. 
27, 132, Oct., 1888. 

V E 1 a (2). Where a State statute, in consenting to the purchase 
by the United States of land within the State and ceding to the 
United States jurisdiction over the same, added that such jurisdic- 
tion should be exercised '^concurrently unih" the State, held tiiat this 
qualification was subject to the objection that it amounted to more 
than the mere reservation (not unfrequent) of the right to serve 
upon the land legal process for acts done and crimes committed out- 
side of the same, and should therefore be regarded as inconsistent 
with a grant of exclusive jurisdiction to the United vStates over such 
\sim\;^ furtlter that it so far qualified the consent given to the pur- 
chase as to make it at least doubtful whether, in view of the pro- 
visions of section 355, R. S., the Secretary of War w^ould bo author- 
ized to expentl an appropriation wliich had been made by Congress 
for the erection of public buildings on the land. R. 4^, 197, Feh., 
1880. 



» See 8 Op. Atty. Gen., 41 S. 

- See, however, opiiiioii of the Attorney General dated July 3, 1907 (26 Op. Atty, 
Gen., 289), where it was held that the constitutional provision covers the purchase 
of land "needful " for any reason " to the discharge of any of the constitutional duties 
or the exercise of any of the constitutional powers of the United States," and that 
the Uniled States ac(iuired exclusive jurisdiction over the premises. 

^ See United States v. Cornell, 2 Mason, 60; United otates v. Davis, 5 id., 356; 
Lasher v. State, 30 Texas Appeals, 387; 6 Op. Atty. Gen., 577, 578; 7 id., 628, 634; 
8 id., 30, 102. 411, 417; 20 id., 242, 298, 611. 



936 PUBLIC PROPERTY V E 1 C. 

V E 1 c. It has repeatedly been held, and is now regarded as well 
settled law, that exclusive legislation and exclusive jurisdiction mean 
one and the same thing, and that where a State has ceded to the 
United States the right of exclusive legislation over a tract of land 
within the territorial limits of the State, a reservation to the State 
of concurrent jurisdiction is valid only so far as it is not repugnant to 
the exclusive jurisdiction of the United States. Thus where the act 
of the legislature provided that ''the United States may enter upon 
and occupy any land which may have been or may be purchased, or 
condemned, or otherwise acquired, and shall have the right of exclusive 
legislation and concurrent jurisdiction together with the State * * * 
over such land and the structures thereon, and shall hold the same 
exempt from all State, county, and municipal taxation," it was heMthsbt 
the only legal effect of the "concurrent jurisdiction" therein reserved 
to the State was to admit of the service of civil and criminal process 
by the State upon the lands of the United States, and thus to prevent 
such places from becoming a sanctuarv for fugitives from justice. 
R.50, 255, May, 18S6; C. 1581, July, 1895. 

V E 1 d. Wliere the State of New Jersey ceded jurisdiction over land 
at Sandy Hook, N. J., for military purposes, with the proviso that the 
jurisdiction so ceded shall not "prevent the operation of the public 
laws of this State within the bounds of the said tract so far as the 
same may not be incompatible with the free use and enjoyment of the 
said premises by the United States for the purposes above specified," 
held that without this proviso there could be no doubt that the cession 
would be of the entire jurisdiction of the State with reservation of the 
right to serve process; that if the proviso be given full operation it 
would, apparently, retain the right to pass laws and enforce the same 
within the reservation subject to the limitations stated, so that the 
jurisdiction ceded by the act would be concurrent only ; that the proviso 
might also be construed as intended to provide that on the separation 
of the territory from the jurisdiction of the State the laws of the State 
then in force would continue operative within the ceded territory 
until changed by Congress;* and that as the latter construction would 
not be inconsistent with the terms of the cession and with the apparent 
intent to cede to the United States the jurisdiction contemplated by 
clause 17, section 8, of Article I of the Constitution, it should be adopted 
so that the act as a whole would be construed as conferring on the 
United States exclusive jurisdiction over the premises.' C\ 210Jf4, 
Feb. 6, 1907. 

V E 1 e. The term "purchase," as employed in statutes, has been 
construed as embracing all the forms of acquiring title — including con- 
demnation—except that by descent.^ But in Kohl v. U. S.,^ the 
Supreme Court says: "It is true the words 'to jDurchase' might be 
construed as including the power to acquire by condemnation, for, 
technically, purchase includes all modes of acquisition other than that 
of descent. But, generally in statutes, as in common use, the wortl 
is employed in a sense not technical, only as meaning acquisition by 
contract between tlie parties, without governmental interference." 
In a case, therefore, of certain lands in a vState acquired by the United 
States by condemnation in the exercise of the right of eminent 

» Chicago & Pacific Ry. Co. v. McGlinn (114 U. S., 542). 

2 VII Op. Atty. Gen., 114, 121, Ex parte Hebard, 4 Dillon, 380, 384; Burt v. Mchts. 
Ins. Co., 106 Mass., 350, 3G4. 
39IU. S., 3G7, 374. 



PUBLIC PROPERTY V E 2 d. OSY 

domain, advised that a special act of cession of jurisdiction be obtained 
from the State. P. 50, 474, Dec, 1891. 

V E 2 d. In view of the general rule of interpretation, that a 
statute is not to be construed as retrospective unless its language 
clearly shows that it was so intended, held that a general statute of 
1891, giving the consent of the State of Louisiana to the purchase by 
the United States of land within the State for public purposes, was 
in effect prospective and did not apply to the purchase of the land at 
Jackson Barracks, made before the date of such act.* Moreover the 
Constitution of Louisiana of 1868 forbids the enactment of retrospec- 
tive laws. R. 45, 436, Sept., 1882; L. 50, 95, Mar., 1886. 

V F 1 a. The laws of a State regulating the use of the water of 
streams thereof for irrigation purposes are not operative on a military 
reservation over which the United States has exclusive jurisdiction. 
Thus where the creek had its source on such a reservation, held that 
parties residing on said creek outside the reservation had no legal 
rights mider the laws of tlie State m the waters of the creek until 
the same left the reservation, but recommended that the proper 
commaniling officer be directed to so regulate the use of the water on 
the reservation that there would be no unnecessary waste. C. 2453, 
July and Sept., 1896. 

A law of the State of New York of February 17, 1909 (Consoli- 
dated Laws, 1909, vol. 3, p. 2100, sec. 203), required employers to 
insure their worlunen against mjury. Held that the law did not 
extend over the military reservation of West Pomt, jurisdiction over 
which was ceded by the State to the United States, reserving only 
the right to serve ' ' any process, civil or criminal, under the authority 
of the State, except so far as such process may affect the real or per- 
sonal property of the United States." C. 20947, Oct. 12, 1910. 

V F 1 a (1). The State of Kansas liavmg surrendered to the 
United States its jurisdiction over the military reservations of Forts 
Leavenworth and Riley by an act of its legislature of February 23, 
1872, which was earlier in date than the prohibition laws of the State 
(having their origin in the constitution adopted Nov. 2, 1880), held 
that such laws did not extend over and could not be applied to those 
reservations. P. 39, 17, Feb., 1890. 

V F 1 b. The law is settled that where consent to purchase has 
been given, or exclusive jurisdiction has been ceded over land m a 
State, occupied for public purposes, the land ls no longer a part of 
the State in a political or legal sense,^ and no taxes, poll tax, or State, 

1 Compare XV Op. Atty. Gen., 48r>, 

^ See, on this general subject, the folhnving as the principal authorities: Fcrtljcav- 
enworth R. R. Co. v. Lowe, 114 U. S., 525; United States v. Travers, 2 WTiceler C. C, 
490; Do. V. Tierney, 1 Bond, 571; Do. v. Stahl, Woolworth, 192, and McCahon, 206; 
Commonwealth v. Clary, 8 Mass., 72; Mitchell -i'. Tibbetts, 17 Pick., 298; Opinion of 
Justices, 1 Met., 580; State v. Dimick, 12 N. Hamp., 194; People v. Godfrey, 17 Johns., 
225; Do. v. Lane, 1 Edmonds, 116; Commonwealth v. Young, Bright, 302; In re O'Con- 
nor, 37 Wise, 379; Clay v. State, 4 Kans., 49; Painter v. Ives, 4 Nebr., 122; Sinks v. 
Reese, 19 Ohio State, 316; 6 Opins.Atty. Gen., 577; 7 id., 628; 8 i<l., 30, 102, 387, 418. 

In this connection note an ojjinion of the Attorney General of February 7, 1880 
(16 Opinp., 468), that whether a superintendent of a national cemetery can legally be 
requii-ed to work uj^on the public roads of the State (in compliance with a law of the 
State requiring all male citizens between certain ages to perform such work), must 
depend upon whether he resides upon land acquired by the United States over which 
the State has parted with its jurisdiction; that if the jurisdiction over the cemetery 
grounds Avithin which the superintendent resides has been surrendered to the United 
States, he is exempt from such obligation. 



938 PUBLIC PROPERTY V F 1 b (s). 

county, town, or school tax, or other form of taxation, can thereafter 
legally be imposed upon those lawfully resident or commorant thereon 
{E. 49, iS7, July, 1885) ; and that such persons are withdrawn from 
the civil and criminal jurisdiction of the courts of the State, and from 
liability to the process of the same (except so far as may legally have 
been reserved by the State — see V and V E 1 a (1) ante). On the 
other hand, such persons are not entitled to enjoy any of the priv- 
ileges of such citizen as the privilege of voting or the use of the public 
schools, etc. R. 21, 567, July, 1866; 33, 8, Mar., 1872; 39, 151, 
Aug., 1887; G. 3521, Se'pt, 1897. Held., therefore, that officers sta- 
tioned at Fort Trumbull, Conn., were not entitled to send their 
children to the schools of the city of New London without paying 
the fees exacted by the city in cases where parents elect to send their 
children to a school in a district different from that in which tliey 
reside. P. 62, 348, Nov., 1893. 

V F 1 b (3). The effect of tlie cession of exclusive jurisdiction is 
to withilraw the territory and its inhabitants from all control of the 
State authorities.* So, %eld that exclusive jurisdiction having been 
ceded over Davids Island, the coroner of Westchester County, N. Y., 
would have no authority to hold inquests on the bodies of persons 
dymg on the island ; but a/hnsed that he be permitted to hold inquests 
on the island on the bodies of unknown persons found washed upon 
its shores or floating in the neighboring waters. P. 36, 143, Oct., 
1889; O. 25936, Dec:, 1909. Also Md, with respect to the proposal 
of the board of health of New RoclieUe, N. Y., to appl.y quarantine 
regulations to enlisted men on the military reservation of Fort 
Slocum, N. Y., that the local board of health would have no authority 
as a matter or right within the reservation, and that whether they 
should be permitted to do so, by comity, was a matter to be deter- 
mined by the local military authorities after consultation with the 
officers of the said board of health. C. 17372, Jan. 16, 1905. Also 
lieM, that the act of the Missouri I^egislature providmg for vital 
statistics was not operative withm the national cemeteries near 
Jefferson City and Spring-field, Mo., over which exclusive jurisdiction 
had been ceded. C. 26128, Ja,n. 27, 1910. Also held, with respect 
to the easements for highways within the military reservations of 
Fort Hamilton, N. Y., and Fort Revere, Mass., that the right to 
regulate and dispose of tlie easements was in the United States and 
not hi the local highway authorities. C. 3565, Oct. 13, 1897; 15264, 
Sept. 29, 1903; 21396, Apr. 17, 1907. Also held, with respect to 
permitting agents of life insurance companies to solicit busmess on 
the military reservation of Fort Leavenworth, Kans., without license 
from the State authorities, that as no reservation was made in th(^ 
act ceding jurisdiction of the right to regulate such matters, no 
State license was necessary. C. 22466, Dec. 11, 1907. Also heM, 
that the State authorities had no jurisdiction regarding the licensing 
and regulation of marriage ceremonies on the reservation of Spring- 
field Armory, Mass., but advised that the marriage, mcluding the 
procuring of a license, registration, and ceremony, be entered into 
in accordance with the State law, in ortler that evidence of the 
marriage may be a matter of public record. 0. 1826, June 6, 1910. 

1 In re Ladd, 74 Fed. Rep., 31; Story on the Constitution, vol, 2, sec. 1227. 



PUBLIC PROPERTY V F 1 b (s) (d). 939 

V F 1 b (3) (d). Where the fee-simple title to highways was in 
the abutting property owners, subject to the public easement for 
highway purposes, and the Government acquired title to the land 
on both sides of a public roadway running through a military reser- 
vation, and the State by general law ceded exclusive jurisdiction 
over the entire reservation to the United States, held that the effect 
of the cession was to cede to the United States political jurisdiction 
over that portion of the roadway within the limits of the reservation, 
so that the State authority over the roadway ceased with such 
cession, and if it became necessary for the proper use of the reser- 
vation to close the roadway, such action could legally be taken by 
the United States. O. 3565, Oct. 13, 1897; 21396, Apr. 17, 1907; 
14715, May 12, 1909. Held, further, that the road could be closed 
by the local military authorities under orders of the Secretary of 
War. C. U7 15, May 12,1909. 

V F 1 b (3) ig). On an application of the administrator appointed 
by the coiu't of the ])arish of Orleans of the succession of a deceased 
soldier who died at Jackson Barracks, La. — a place over which juris- 
diction had been ceded by language that the United States "shall 
have the right of exclusive legislation, and concurrent jurisdiction 
together with the State of Louisiana" — to have certain effects within 
the reservation turned over to him, lield (1) that the language of the 
cession should be construed to give the United States exclusive juris- 
diction, subject only to the right of the State to serve process on the 
reservation; (2) that if so construed, the State court was without 
jurisdiction to administer the effects on the reservation,^ if that 
State was not the domicile of the deceased, since the situs of the 
property was not within the jurisdiction of the State; and (3) that as 
the court assumed jurisdiction it might be assumed that the domicile 
of the deceased was in the State. Adinsed, however, that the effects 
be taken outside the reservation and there turned over to the admin- 
istrator, in which case the propertv would be mthin the jurisdiction 
of the State. C. 16153, Apr. 8, 1904. 

Held, with reference to the disposition of money found on a body 
which could not be idcntiffed and which was washed ashore on the 
reservation at Fort Dade, Fla., that as it did not appear that juris- 
diction had been ceded over this reservation, the money should be 
turned over to the sheriff of the county, who, by the law of the State, 
was ex officio nxhuinistrator of the effects of deceased persons found 
in the State in the absence of a legal representative otherwise ap- 
pointed. C. 11973, Jan. 27, 1902. In a similar case where the body 
of an unidentified sailor was found on the beach at Fort McRee, Fla., 
over which iurisdiction had been ceded by the State, lield that the 
money should not be tui-ned over to the State officials, but, in the 
absence of a representative entitled thereto, should be deposited in 
the Treasury as property escheated to the Federal Government.^ 
C. 23692, Aug. 4, 1908. 

Held, with reference to the disposition of the effects of ex-soldiers 
dying at military hospitals where exclusive jurisdiction had been 
ceded, that in tlie absence of application of an executor or adminis- 

' See, however, Divine v. Unaka Nat. Bank (Tenn.), 140 S. W., 747, where it was 
held that the State courts had jurisdiction on the ground that jurisdiction over such 
niatt«r3 had not l)een conferred on the Federal courts. 

^ This view was concurred in by the Solicitor of the Treasury Aug. 11, 1908. 



940 PUBLIC PROPERTY V F 1 b (s) (7i). 

trator appointed by the court of the domicile of the deceased, after a 
reasonable time the effects should be disposed of and the proceeds 
deposited in the Treasury of the United States in accordance with 
the custom as to effects of deceased soldiers. O. 7843, Mar. and June, 
1900 Mar., 1910; 21856, July, 1907; 28515, June 10,1911. 

V F 1 b (3) Qi). Where the jurisdiction of the United States over 
any military reservation or other place is unco'^ditionally exclusive, 
no State oflicial can legally serve a warrant upon an officer or soldier 
within the limits of such reservation or place,* R. 31, 567, July, 
1866. 

The legality of the service, at a military post, of process issued 
in a suit or prosecution instituted in a State court depends (as to 
its original authority) upon the question whether the sovereignty of 
the soil resides wholly m the United States (either by virtue of a 
reservation of the same by the United States upon the admission 
of the State, or of its subsequent surrender by the State) or is shared 
by the State government. Wliere, by an act of consent or cession of 
the legislature of a State in which a military reservation or post is 
situated, exclusive jurisdiction over the same has become uncondi- 
tionally vested in tlie United States, as contemplated by Article I, 
section 8, clause 17, of the Constitution, no process issued from the 
State courts can legally be served thereon, but only process issued 
from courts of the United States can be tliere executed. Wliere, 
however, in ceding jurisdiction, the State has reserved to itself the 
right, not unfrequently reserved under the circumstances (and wliich 
it is often for the advantage of the United States to have reserved, 
since otherwise the post might become an asylum for criminals) to 
serve within the premises civil and criminal process on accoimt of 
rights accrued, obligations incurred, or crimes committed in the State 
but outside of the premises, then the writs of the State tribunals may 
be executed on the land in the class of cases thus excepted. Of 
course where there has been no cession of jurisdiction by the State, 
its officials have the same authority to serve the process and man- 
dates of its courts, and its courts have the same jurisdiction over acts 
done and crimes committed within the military post as elsewhere in 
the State, the mere fact of the ownersliip or occujiation of the land 
by the United States having no effect to except it from the operation 
of the State laws. R. 16, 51 4, Aug., 1865; 21, 567, July, 1866; 33, 8, 
Mar., 1872. 

V G 1. The term "or other public building of any kind whatever" 
used in section 355^ R. S., lield to include the viaduct at Rock Island 
Arsenal, for the construction of which appropriation was made by 
Congress by acts of 1889 and 1890.2 p j^g^ j^r^^ jvW ^^ ^§90. Also 
held to include the ^^observation towers,^' for the erection of which 
in the Chickamauga and Chattanooga National Park apjiropriations 
were made in the acts of August 5, 1892, and March 3, 1893. Ces- 
sion of jurisdiction by the State is therefore requested in each case 

1 See Civil suit, etc. It is further held, in Ex parte McRoberts, 16 Iowa, 600, 603, 
that the provisions of the article apply only to officers and soldiers while within the 
immediate control and jurisdiction of the military authorities, and therefore do not 
apply to a case of a soldier absent on furlough; but that Buch a soldier, pending his 
furlough may be arrested in the same manner as any civilian. 

2 In 7 Op. Atty. Gen., 114, Mr. Gushing treated the land acquired by the United 
States for the use of the Washington Aqueduct as coming within the provisions of 
sec. 355, R. S. 



PUBLIC PROPERTY V G 1 a. 941 

before the appropriation can le^jally be expended. P. 60, 30, June, 
1893; 63, 60, Dec, 1893; C. 3060, Apr. 3, 1897; 3066, Ajrr. 17, 
1897; 6946, Sejjt. 20, 1899; 753^, Jan. 17, 1900; 7553, Feb. 2, 
1900; 7793, Mar. 9, 1900; 8649, Feb. 8, 1901; 12154, Mar. 31, 1902; 
13817, Dec. 19, 1902. 

V G 1 a. On the question whether cession of jurisdiction is required 
where hmd is purchased for park purposes, licld that in view of 
section 355, R. S., the cession would be required,^ but that apart 
from this statute it mi^ht be questioned whether such cession wouhl 
be necessary or desirable where lands are acquired for park or river 
and harbor purposes, since, if the State retains its jurisdiction over 
such places, there would be a convenient forum for the trial of 
offenses committed thereon. C. 18817, Dec. 19, 1902. 

V G 2. Section 355, R. S., in prohibiting the expenditure of public 
money upon lands purchased for a purpose therein mentioned, before 
the consent of the State to the purchase of the land is obtained, does 
not preclude the mere purchase itself. The land therefore may legally 
be paid for, and the title thereto acquired, in the absence of such 
consent.^ P. 63, 1, Dec, 1893. Neither the constitutional provision 
(Art. I, sec. 8, cl. 17) nor the statute (sec. 355, R. S.) precludes the 
United States from acquiring the title to the land. P. 64, 330, Apr., 
1894; C. 7793, Mar., 1900; 13817, Dec, 1902. 

V G 3. The title of the United States to the lands at Fort Monroe, as 
ceded by the State of Virginia, being Umited to the line of ordinary 
low-water mark, lield in view of the provisions of sections 355 and 
4661, R. S., that a cession of jurisdiction over the necessary soil under 
the water beyond low-water mark should be obtained from the State 
before the appropriation, made by the act of August 10, 1888, for the 
iron pier to be constructed at Fort Monroe, be expended. R. 53, 328, 
Apr., 1887. 

V H 1 a. Wliere political jurisdiction over a Territory passes from 
one sovereignty to another it is a well-estabhshed rule that the 
municipal laws continue in force until abrogated by the new sov- 
ereign.^ Held, therefore, that where exclusive jurisdiction has been 
ceded over reservations within States, the State laws other than 
criminal c<intinue operative within the reservations until changed 
by Congress, but that the operation of the State criminal laws is 
supei-seded by the criminal laws of the United States. C. 16691, 
Sept. 10, 1902; 19489,^ Mar. 29, 1906; 19855, June 4, 1906. With 
respect to reservations in Territories, held that the act of the President 
in making the reservation has no effect on the operation of the Terri- 
torial laws unless their operation is modified bv Congress.* C. 16691, 
Sept. 10, 1902; 19855, June 4, 1906. 

' See 7 Op. Atty. Gen., 114, where the statute was held to require cession of juris- 
diction over lands required for the use of the Washington Aqueduct. 

2 See 10 Op. Atty. Gen., 34, 39; 15 id., 212, 213; III Comp. Dec, 530. 

' Fort Leavenworth Railroad Co. v. Lowe, 114 U. S., 525; Chicago Railroad Co. v. 
McGlinn, id., 542; Dhn^ne v. Unaka National Bank (Tenn.), 140 S. W., 747. 

* With respect to the operation of the laws of Porto Rico, the Secretary of W'ar, in a 
letter to the governor dated June 6, 1906, said: "1 concur in the opinion rendered by 
the acting judge advocate general in so far as it is held that the laws and ordinances of 
Porto Rico, when not in conflict with laws of the United States not locally inapplicable 
extend, and are in force in and over all lands reserved by the United States for military 
and other purposes, saving always that instrumentalities of the Federal Government 
located thereon are exempt from local control." 



942 PUBLIC PROPERTY V H 1 b. 

V II 1 b. Section 5391, R. S., provides that any offense committed 
in any place ceded to and under the jurisdiction of the United States, 
shaU, where not specially made punishable by any law of the United 
States, be visited with the same punishment as is proAdded for such 
offense by the laws ''now in force" of the State within which such 
place is situatetl. This provision, originally enacted March 3, 1825, 
was substantially reenacted April 5, 1866. In 1832 it was ruled by 
the Supreme Court ^ that the provision of 1825 was ''limited to the 
laws of the several States in force at the time of its enactment." And 
in recent cases, arising in Montana ^ and Colorado,^ it has been held 
that the provision in section 5391 did not apply to the offense because 
these States, with their laws, did not come into existence till subse- 
quently to the date of the enactment of 1866. Thus the section 
(5391) is operative neither as to offenses committed in States which 
entered the Union since 1866, nor as to those committed in States 
where, April 5, 1866, there existed no criminal statute providing for 
the punishment of the particular offense. A mollification of the 
existing hiw is called for. This can not be done by legislation adopt- 
ing beforehand all the criminal laws of a State which shall be in force 
at the time of the criminal act, because that would be a delegation by 
Congress of its legislative power to the States. The reenactment, 
from time to time, therefore, of section 5391, or of a provision to a 
similar effect, recommended/ P. 57, 488, Feb., 1893; 61, ^35, Sept., 
1893; C. 3546, Sept., 1897; 19489, Mar. 29, 1906. 

V H 2 b. Wliere a military post or reservation is situated in a 
Territory, the Territorial courts are authorized to issue process for 
the arrest of officers or soldiers of the command charo;ed with crime, 
or to cite them to appear before them as defendants in civil actions, 
or to attach, replevy upon, or take in execution any property belong- 
ing to them within the posts, etc., not specially exempted from legal 
seizure. This for the reason that the courts in whic-li is vested the 
judicial power of a Territory are not the courts of a sovereignty 
distinct from the United States but are the creatures of Congress,^ 
being established by it directly or indirectly by its authority througli 
the Territorial legislature, under the provision of the Constitution 
(Art. IV, sec. 3, par. 2) empowermg Congress "to make all needful 
rules and regulations respecting the Territory belonging to the United 
States." Thus wliile officials charged with the service of the process 
of such — as, indeed, of any — courts would, in comity, properly refrain 
from entering a military post for the purpose of serving process 
therein, or at least from making the service, till formal permission 
for the purpose had been sought and obtained from the commanding 

1 U. S. V. Paul, 6 Peters, 141. 

2 IT. S. V. Barnaby, 51 Fed. Rep., 20. 

3 U. S. V. Curran, cited in Ex. Doc. No. 14, H. R., 53d Cong., Istsess. 

♦ See sec. 289 of Criminal Code, approved Mar. 4, 1909 (35 Stat. 1088, 1145). 

^ In United States v. Kauchi Motohara and United States v. Matsunaga, cases pend- 
ing in the United States district court for the Territory of Hawaii, said court overruled 
the demurrer for want of jurisdiction,^ holding that the words "exclusive jurisdiction 
of the United States" in the Penal Code mean the power and authority of the United 
States, whether partly exercised through its subordinate (i. e., the Territorial Govern- 
ment) or not. The opinion conceded that the Territorial courts would have j urisdiction 
over offenses committed on the reservation, ])utheld that such jurisdiction did not ex- 
clude the jurisdiction of the United States district court also. See also 7 Op. Atty. 
Gen., 564; 26 id., 91; Burgess v. Territory (8 Mont., 57, 19 Pac, 658) j Reynolds v. 
People (1 Colo., 179); Scott v. Wyoming (1 Wyo., 40). 



PUBLIC PEOPERTY V H 2 C. 943 

officer, yet, on the other hand, officers commandmg military posts 
in the Territories should certainly interpose no obstacle to the due 
service within their commands of the legal process of the Territorial 
courts.^ R. 28, 1, July, 1868; 39, 541, May, 1878; C. III4I, Aug. 
27, 1901. 

V PI 2 e. In the absence of any statute directly or by necessary 
implication extendmg the powers of the local government of the 
District of Columbia over the military reservation and post at the 
arsenal in Washington, held, that the health officer appointed by the 
commissioners (constituting such government) would not be em- 
powered of his own authority and without the consent of the military 
commander to enter upon such reservation and remove or abate a 
nuisance deemed by him to exist thereon. The effect of the legisla- 
tion in regard to the government of the District is to except there- 
from the public buildings and grounds of the United States, which 
are left to tlie charge of certain specified officials. Even further 
removed from such government is the reservation at the arsenal, 
the same being a military post commanded by the President, through 
a military subordinate, and governed by military orders and regula- 
tions. R. 42, 270, May, 1879; C. 17372, Jan. 16, 1905; 26450, 
Mar. 31, 1910. 

VI A. The vesting of a right of way in the United States does not 
merely authorize the Government to send its agents and employees 
on the land for purposes of construction, etc., but endows it with such 
right and control as to enable it to keep the way open and insure its 
continued use for the pur])oses designed. But where it was pro])osed 
to cede to the United States a right of way from a city, by one of its 
laid-out streets, to an adjacent national cemetery, lield that the muni- 
cipality, in the absence of specific authority conferred by the legisla- 
ture, was not empowered to convey such a right, but that the legisla- 
ture alone could do so, just as the legislature alone could vacate or 
discontinue a street.^ P. SO, 45, Jan., 1889. 

VI A 1. So, held that an appropriation made by Congress for 
constructing a road from a city through one of its streets to a 
national cemetery could not legally be expended upon a right of way 
granted by a city ordinance, the legislature not having delegated such 
jurisdiction over its streets to tlie municipality, which could not 
therefore transfer to a third party a permanent property therein. 
P. 54, 4^3, July, 1892. Held that wdiere such a municipality had 
not been empowered to convey a right of way outside its corporate 
limits, the conveyance should be made directly to the United States 
from the individual owners of the land, and that for the latter to 
convey, mediately, to the city would be an lumecessary proceeding. 
P. 29] 68, 69, Dec, 1888. 

VI B. Without express authority from Congress, the Secretary of 
War can not grant to railway companies rights of way over the lands 
of the Ignited States under his control, but he has frequently by 
revocable license granted permission to lay and maintain railway 

* See the opinion of the Judge Advocate General, publiyhed in G. O. 30, Hdqrs. of 
Army, 1878, an connection with 7 Op. Atty. Gen., 564. But see contra, In re Charles 
Brown and Austin Burke, on Habeas Corpus (Sept., 1884), "In the district court 
[Territiirial] of the second judicial district, holding terms at Vancouver," published 
in Cinnilar 21, Department of the Columbia, June 15, 1885. 

2 Dillon on Municipal Corporations, G47, 652, 665; Kreigh v. Chicago, 86 111., 407. 



944 PUBLIC PEOPERTY VI B 1. 

tracks upon such Government lands. C. 21^1, Aug., 1894; 6539, June, 
1899; 209U, Jan. 15, 1907. 

VI B 1. A State can have no authority to appropriate land included 
in a military reservation of the United States to the purposes of a right 
of way for a railroad.^ Such a right of way granted by a State legis- 
lature can not be recognized as legal by the United States. R. 31, 
249, Mar., 1871. 

VI B 2. Where an act of Congress grants to an individual or corpo- 
ration a right of way (or other franchise), no formal acceptance of the 
same is necessary. By simply acting under the grant, the grantee 
accepts the same with all its conditions. P. 59, 4I8, May, 1893. 

VI B 3. Where a grant of a right of way is made by the United 
States to a particular grantee over lands of the United States, but with- 
out designating the precise strij) of land in the entire body of laud 
which is to be occupied, it is held by recent authority that if the gran- 
tee selects such way, and the grantor does not object to such selection 
but silently acquiesces therein, he substantially constitutes the grantee 
his agent for such selection, and himself joins, in law, in the selection, 
and the title to the tract selected passes to the grantee.^ This ruling 
held a])])licable to the case of the right of way through the Fort Leav- 
enworth Military Reservation, granted to the Kansas & Missouri 
Bridge Co., by the act of July 20, 1868, c. 179. P. 50, 395, Dec, 1891. 

VI B 4. Where authority was given to the Secretary of War, by 
act of Congress, to .grant permission for an electric railway on a reser- 
vation under such conditions and requirements as he might prescribe, 
held, on the question of whether the Secretary of War could require 
the joint use of the tracks on the reservation by another railway 
company, that it was not intended to confer a monopoly upon the 
first company, and that it was within the authority of the Secretary 
of War to require both companies to use the tracks upon payment of 
their respective shares of the cost of construction and maintenance. 
C. 13246, Sept. 26, 1904. 

VI C 1. To legalize the use of a public road (State, county, or Terri- 
torial) across a corner of a military reservation, held as follows: (1) 
The Secretary of War may, under the act of July 5, 1884 (23 Stat. 104), 
permit the extension of such a road across a military reservation 
"whenever, in his judgment, the same can be done without injury to 
the reservation or inconvenience to the military forces stationed 
thereon." (2) Or he can abandon to the Secretary of the Interior, 
under the same act, the strip of the reservation to be travei-sed by the 
road, and the latter official can then authorize the road under section 
2477, R. S., by which "rights of way for the construction of highways 
are granted over public lands not reserved for public uses." P. 43, 
415, Nov., 1890. 

VI D, Questions of rights to the use of water in States and Ter- 
ritories where the rainfall is not sufficient to supply the land with 
water for irrigation are determined by rules not found in the common 
law. In England and generally in this country the right of one per- 
son to conduct water over the land of another is an interest in real 
estate which must be conveyed by deed. In districts where there is 

1 See United States v. R. R. Bridge Co., 6 McLean, 517; 111. Central R. R. Co. v. 
United States, 20 Law Rep., 630; G Op. Atty. Gen., 670; 16 id., 114. 

2 Railway Co. v. Ailing, 99 U. S., 468; Onthank v. Railroad Co., 71 New York, 196. 



PUBLIC PROPERTY VI D 1. 945 

sufficient rain to fertilize the land there is no reason for distinguish- 
ing this interest from other easements in the soU. In regions where 
the fertility of the soU is dependent upon irrigation a different prin- 
ciple arises. By it the right of a person, who can not otherwise 
secure a necessary supply of water, to enter the land of another for 
such purpose, is recognized.^ The use of this right is secured and 
regulated by statute in the Western States, and is further recognized 
by Congress in the act of March 3, 1891, chapter 561, sections 18-20, 
which extends to individuals and associations the right to enter the 
public lands and reservations of the United States, and have a right 
of way upon the same for the construction of irrigating ditches.* 
So, held, that where an individual had constructed such a ditch over 
the soil of a military reservation in Wyoming, after filing the map of 
the line of the same required by section 20 of the act, his use of the 
water could not be controlled or interrupted by the military author- 
ities so long as he did not, by the location of his right of way, "inter- 
fere with the proper occupation" of the reservation by the Govern- 
ment (sec. 18 of the act). R. 49, 97, May, 1885; P. 55, 268, Sept. 
1892. 

VI D 1. By sections 18 and 20 of the act of March 3, 1891 (26 
Stats. 1110-1112), the right of way is granted across the public lands 
and reservations of the United States for the construction of irri- 
gating ditches, subject to the approval of the location of right of way 
across a reservation by the department of the Government having 
jurisdiction of such reservation. Where the Secretary of War, under 
this statute, approved the location of a right of way across a military 
reservation, but subject to certain conditions for the benefit of a 
third party, Jield, that the Secretary of War was without authority to 
compel the grantee of the right of way to comply with the conditions, 
or to deprive him or his assigns of such right of way on account of 
his or their failure to comply with the conditions. C. 1063, May, 
1896; 13789, Dec. 9, 1902. 

On the request for authority to construct a diversion dam and 
irrigation ditch on the military reservation of Whipple Barracks, 
Ariz., lieU, that the act of February 15, 1901 (31 Stat. 790), gives 
ample authority for the approval of any permit which the Secretary 
of the Interior might issue for the proposed work. ' C. 28557, June 
19, 1911. 

VI p 2. HeU, that as the act of February 15, 1901 (31 Stat. 790), 
in giving the Secretary of the Interior authority to permit the use of 
rights of way through the public lands and reservations of the United 
States for irrigation purposes, inter alia, expressly provides that it 
shaU be "only upon the approval of the chief officer of the depart- 
ment under whose supervision such contract or reservation falls," 
upon the acquisition of lands for the Fort Logan Reservation, Colo., 
no right of way could be thereafter located under State law, but only 
in accordance with the said act of February 16, 1901. C. 25616, 
Mar. 2, 1911, and June 21, 1911. Held, however, that if such a right 

^ Yunker v. Nichols, 1 Colo., 551. But, it seems, that in the absence of statute the 
person would have no right to construct a ditch on the lands of another without the 
owner's consent. Gould on Waters, 3d edition, sec. 233. 

^ As to the operation of the act of July 26, 1866, and other prior enactments relating 
to this subject, see Broder v. Water Company, 101 U. S., 274; Sturr v. Beck, 133 id., 
541. See, also, Gould on Waters, 3d edition, sec. 240, and authorities cited. 

93673°— 17 60 



946 PUBLIC PROPERTY VI E. 

of way had been located under license, followed by actual work in 
enlarging an existing ditch or making a new one prior to the acquisi- 
tion of the property, although not held under formal conveyance, 
such a license would be irrevocable and would bind the property in 
the hands of the United States,^ C. 25616, June 21, 1911. 

VI E. The right of way granted to the Northern Pacific Railroad 
Company by section 2 of the act of July 2, 1864 (13 Stat. 367), unlike 
the grant of lands by section 3, was subject to no exceptions or limi- 
tations. So, lield, that the fact that, subsequently to the date of the 
act, the President reserved land on the line of the raOroad for mili- 
try purposes, before the company had definitely fixed its line and 
filed its maps, did not affect the right of way as granted by the act, 
and that such way was not interrupted by such reservation.^ R. 49, 
367, Oct, 1885. 

VI E 1. The act of September 10, 1888 (25 Stat. 473), relating to 
rights of way of railroads through water-reserve lands in Wisconsin, 
confirms, as to that State, the rights of way given by the act of March 
3, 1875 (18 Stat. 511). P. 32, 223, May, 1889. But the act of 18^88 
leaves these rights still subject to the right of flowage, which, under the 
authority of the United States, may need to be resorted to in connec- 
tion with the improvement of the Mississippi River, and subject also 
to the condition that no railroad company shall take material for con- 
struction from the water-reserve lands outside the right of way. P. 
33, 4^9, July, 1889. Where the location of a railroad ha^ been 
approved by the Secretary of the Interior, and its right of way per- 
fected, under the act of 1875)^ it is not required that there should be a 
reapproval by the Secretary of War under the act of 1888. P. 31, 
362, Apr. 1889; 33, 156, June, 1889. An approval by the Secretary 
of War, under the act of 1888, of the location of a right of way for a 
certain railroad, not recommended until the company file with their 
application a perfect profile and full and minute description of the 
proposed line. P. 29, 253, Jan., 1889. 

VII A 1. Where a lease made to the United States, of land to be 
used for public purposes, contained no stipulation other than one for 
the payment of certain rent, held that such lease was not annulled by 
transfer under section 3737, R. S., but was legally assignable. The 
case is deemed to be governed by the ruling of the Supreme Court in 
Freedman's Saving Co. v. Shepherd,^ to the effect that section 3737 
did not apply to a lease so made, "under which the lessor is not 
required to perform any service for the Government, and has nothing 
to do in respect to the lease except to receive from time to time the 
rent agreed to be paid." P. 43, 175, Oct., 1890; C. 18707, Oct. 12, 
1905; 20360, Sept. 10, 1906. 

VII A 2. The United States, being tenant of land leased for military 
purposes at Fort Davis, Tex., erected buildings thereon for the pur- 
poses of a military post. In view of the fact that the relation was 
that of landlord and tenant; that the buildings were erected for a 
purpose analogous to that of trade, and for a public use; and that in 
their erection there could certainly have been no intention to benefit 

' Gould on Waters, 3d edition, sec. 323; Yunker v. Nicholls, 1 Colo., 551, 554. 
De Graffenried v. Savage, 9 Colo. Ap., 131; 47 Pac. Rep., 902. 
2 See Railroad Co. v. Baldwin, 103 U. S., 426; 18 Op. Atty. Gen., 357. 
3127 U. S., 494; IV Comp. Dec, 43. 



PUBLIC PEOPERTY VII A3. 947 

the inheritance or add to the freehold — held tiiat such buildings were 
to be regarded not as fixtures, but as personal property/ and remov- 
able bv the tenant at any time before the expiration of his lease. ^ 
Should the Government sell the buildings standing, the purchaser 
would have the same right of disposition as the United States and no 
more. He would therefore be obliged to remove them before the ter- 
mination of the lease, unless otherwise permitted by the owner of the 
premises. P. Ji7, 71, May, 1891. And held similarly of like buildings 
erected at Fort Union, N. Mex., where the United States was tenant 
at will; the buildings not being intended as improvements, but merely 
for the use of the troops. P. 47, 138, May, 1891 . 

VII A3. The word "month" in a lease, in the absence of an ex- 
pressed intention to the contrary, means a ''calendar month," and a 
"calendar month" means a month as expressed in the calendar, i. e., 
the actual number of days in the month is to be counted.^ C. 25340, 
July, 1909. 

VII A 4. Where land was leased b}^ the United States for a target 
range in the State of Texas and the lease contained a covenant for 
renewal at the end of the j^ear at the option of the United States, held 
that unless the lease were acknowledged (or proved) and recorded as 
provided by the statutes of Texas, such covenant would not be bind- 
mg upon a purchaser for value without notice thereof. C. 2439, 
July, 1896. 

VII A 5. Held, in view of section 3744 R. S., that a ^vritten notice 
of the intention to renew the lease, with the acceptance of the lessor 
indorsed thereon, would not be sufficient, but that a brief formal 
contract, referrino; to the original lease in such a way as to identify 
it, and signed with the names of the parties at the end thereof, would 
meet the requirements of the statute. G. 7214, Oct. 27, 1899. Also 
held, where the lessor refused to renew the lease on the ground of 
misapprehension, that in the absence of fraud on the part of the 
contracting officer this would not relieve him from his obligation, 
and advised that in case of his continued refusal suit be brought for 
specific performance. C. 10768, July 1, 1902. 

VII A 6. Where the United States continued in possession of leased 
land after the expiration of the term, paying the rental quarterly as 
provided in the lease, held that from such possession, and the accept- 
ance of rent by the lessor, a tenancy from year to year was created.* 
C. 7490, Jan. 3, 1900. 

VII A 7. Where rent was due by the United States for the occu- 
pation of a house wliich it had leased for a recruiting rendezvous, 
and the title to the premises was claimed both by the lessor and 
another person as parties to a pending suit in a court of chancery, 
advised that if the rights of the parties to the rent were so involved 
in the litigation as to enable the United States to pay the amount of 

* Van Ness v. Pacard, 2 Peters, 141; King 1;. Wilcomb, 7 Barb., 263; Hutchins v. 
Masterson, 46 Texas, 555; Moodv v. Aiken, 50 Texas, 65; Conrad v. Saginaw Mining 
Co., 54 Mich., 249; Meigs' Appeal, 62 Pa. St., 28. 

2 Sumner v. Tileston, 4 Pick., 307; Griffin v. Ransdell, 71 Ind., 441; 18 Op. Atty. 
Gen., 270; Taylor's Landlord and Tenant, 433. But such buildings could not be 
sold without the authority of Congress. 20 Op. Atty. Gen., 284. 

3 See XI Comp. Dec, 494. 

* Ryder v. Jenvy, 2 Robertson (N. Y.), 56; Holseman v. Abrams, 2 Duer (N. Y.), 435 ; 
Wood's Landlord and Tenant, pp. 76-84. 



948 PUBLIC PROPERTY VII B 1 a. 

the rent into court and receive an acquittance therefor, this course 
would properly be pursued; otherwise that the payment should be 
withheld entirely until the question of title be determined and the 
United States be enabled to receive a final receipt from one of the 
parties or both jointly. P. 64, 15, 300, Feb. and Apr., 1894. 

VII B 1 a. By the river and harbor act of August 5, 1886, the United 
States formally accepted from the State of Ohio the Muskingum River 
Improvement, with all its franchises, appurtenances, water rights, &c., 
subject to any existing leases of water rights under leases granted by 
the State. The State, by its official representative, had made a lease 
to certain individuals which contained a clause providing for a for- 
feiture of the lease in case of an assignment without the sanction of the 
lessor. The lease was assigned to a third party without any formal 
sanction or concurrence on the part of the lessor, but the lessor, sub- 
sequently to the assignment, accepted rents from the assignee. Held 
that such acceptance amounted to an absolute waiver of the forfeiture 
clause, and made the lease valid in the hands of the assignee, investing 
him with all the rights of the original lessees,* and was therefore bind- 
ing upon the United States Under the reservation of the act. P. 22, 
45, Jan., 1888. 

VII B 1 b. The act of Congress approved August 11, 1888 (25 Stat. 
417), authorized the Secretary of War "to grant leases or licenses for 
the use of the water powers on the Muskingum River at such rate and 
on such conditions and for such periods of time as may seem to him 
just, equitable, and expedient * * * and * * * to grant 
leases or licenses for the occupation of such lands belonging to the 
United States on said Muskingum River as may be required for mill 
sites or for other purposes not inconsistent with the requirements of 
navigation." Under this statute two leases for periods of 20 years 
each were granted, but neither provided for a forfeiture of the term for 
nonpayment of rent. Held, therefore, that the Secretary of War 
could not terminate them on account of nonpayment of rent;^ and 
advised that the proper way to terminate them would be to have the 
lessees execute instruments surrendering their terms. C. 2096, Mar., 
1896; 3242, Jan., 1900. 

VII B 2 a. Under the act of Congress approved July 28, 1892 (27 
Stat. 321), the Secretary of War has authority, when in his discretion 
it will be for the public good, to lease for a period not exceeding five 
years and revocable at any time such property of the United States 
under his control as may not for the time be required for public use, 
and for the leasing of wliich there is no authority under existing law, 
provided, that nothing in the act should be held to apply to mineral or 
phosphate lands. Under this act revocable leases have been granted 
m a number of instances. C. 851, Jan. and Apr., 1895; 1790, Nov., 
1895; 2102, Mar. and Oct., 1896; 4IOO, May, 1898. In practice the 
leases or assignments thereof are required to be in duplicate. C. 178, 
179, Aug., 1894; 4I4, Oct., 1894. Under the express terms of the 
act the Secretary of War has no authority to lease mineral or phos- 
phate lands. C. 8619, Nov., 1897; 6389, 6721, May and July, 1899. 
Held, in view of the express prohibition contained in the act of July 

^ Taylor's Landlord and Tenant, sec. 497. 

2 Taylor's Landlord and Tenant, 8th ed., sec. 489; Am. and Eng. Ency. of Law 
(let ed.), vol. 12, p. 758A. 



PUBLIC PROPERTY VII B 2 b. 949 

28, 1892, against the leasing of mineral or phosphate lands, that the 
Secretary of War could not grant permission to locate and work 
mineral claims on a military reservation either by lease or license. 
C. 7281, Nov., 1899; 9722, Jan. 29, 1901; 10720, June 26, 1901; 
10727, June 22, 1901; 11886, Jan. 13, 1902; 19020, Jan. 5, 1906; 
19254, Feb. 27, 1906. Also held that the term "mineral lands" 
should be construed, with reference to other statutes relating to the 
pubHc lands, as including lands chiefly valuable for building stone.^ 
C. 27025, July 23, 1910. In a certain class of cases, to wit, where the 
parties applied for permission to construct certain buildings upon 
reservations and to build docks in a Government harbor, revocable 
leases were granted in lieu of licenses.^ C. 3350, 3356, 3378, July, 
1897; 5926, Feb. 27, 1899; 18942, Dec. 12, 1905; 19254, Feb. 26, 
1906; 20350, Sept. 10, 1906. 

Also held that a quartermaster's dock comes within the purview of 
the act of July 28, 1892, and may be leased. C. 12980, July 17, 1902. 

VII B 2 b. As there is no law requiring the Secretary of War to 
call for bids in leasing property under the act of July 28, 1892, the 
amount for which it shall be leased rests in his discretion. C. 273, 
Sept., 1894. 

VII B 2 0. The Secretary of War leased a part of a military reser- 
vation, the rent to be paid monthly during the continuance of the 
lease. The lease provided that the term should be three years from 
the 12th day of Jul}^, 1894, but it was not in fact executed by the 
Secretary until September 12, 1894, The lessee entered upon the 
reservation about the latter date and vacated the same on July 12, 
1897, the date of the termination of the lease. Held that in point of 
computation the three years' term dated from July 12, 1894, but that 
in point of interest the lease took effect only from the delivery of the 
instrument, and that therefore rent could be collected for only about 
2 years and 10 months.^ C. 273, July and Oct., 1897; 11195, Apr. 16, 
1902. 

VII B 2 d. Where property was leased, under the act of July 28, 
1892, and the lessee requested to be relieved from the payment of 
further rent, Jield that as the lease was revocable the Secretary of 
War could have terminated it at the expiration of any period for 
which rent had been paid, and advised that the lease be regarded as 
terminated on payment of rent up to the time when the premises 
were no longer held by the lessee. C. 11731, Dec. 10, 1901. 

VII B 2 e. The act of July 28, 1892, c. 316, authorizes the Secretary 
of War,- in his discretion, to "lease for a period not exceeding five 
years, and revocable at any time, such property of the United States 
under his control as may not for the time be required for public use," 
such leases to be "reported annually to Congress"; but does not 
prescribe as to the disposition of the moneys received as rents. 
Section 3621, R. S., provides for the disposition of public moneys 
coming into the possession of any person, and paragraph 698, Army 
Regulations (1889), directs that "the face of the certificate or receipt" 
shall "show to what appropriation" the funds belong. Advised that 
it would be sufficient for any post quartermaster or other disbursing 

1 Northern Pacific Ry. Co. v. Soderberg, 188 U. S., 526. 

2 See Op. Atty. Gen. of May 19 and July 7, 1897, 21 Op., 537, 565. 
^ See Taylor's Landlord and Tenant, eighth ed., sec. 70. 



950 PUBLIC PROPERTY VIII. 

officer into whose hands such rents should come to note the character 
of the payment upon his certificate, leaving it to the War Department 
to report the same in the aggregate to Congress at the end of each 
year. P. 69, 369, May, 1893. 

VIII. It is impracticable for Congress to provide by legislation for 
every case in which a license may be granted, because unforeseen 
necessities for permissions of various kinds, often needing immediate 
action, spring up, and these can only be met by an exercise of the 
power of the Executive. These permissions are not always granted 
by formal written licenses. They may not be reduced to writing at 
all, but may be entirely informal, oral permissions to do acts which 
would otherwise constitute trespasses, buch permissions are in effect 
and substance revocable licenses, just as much as those expressed in 
a written instrument. Indeed, the great mass of licenses to do acts 
of various kinds on military reservations are informal permissions of 
this character. Whether it be to enjoy some continuous privilege or 
to do a single act, makes no difference. All are in effect revocable 
licenses, emanating from the same authority. And the only advan- 
tage of the revocable license by written instrument is that it is the 
most convenient evidence of the permission. Many acts are, however, 
such that it would be absurd to resort to written instruments for the 
purpose of granting permission to do them. They are simply orally 
authorized or silently permitted, the authority being the authority of 
the President executed through the commanding officer of the post. 
At every large post there are, no doubt, a number of such acts done 
daily by the authority of these unwritten permissions, or unwritten 
revocable licenses. The power of the President probably does not 
extend to the granting of licenses for the doing of anything which 
would be an injury to the property, nor can he grant other than 
revocable permissions, but there appear to be no other restrictions. 
He can not grant licenses that are not revocable. The power is one 
to be exercised by the President at his discretion, subject only to the 
restrictions mentioned, and of course to such other restrictions as 
may be imposed by or be the result of acts of Congress. The act of 
July 28, 1892, authorizing the Secretary of War to grant leases, seems 
to have been intended as an extension, certainly not as a restriction, 
of his power. It is inapplicable to the purposes for which revocable 
licenses are used. And the sixth section of the act of July 5, 1884, 
(23 Stat. 103) "to provide for the disposal of abandoned and useless 
military reservations," authorizing the Secretary of War to permit 
the extension of roads across military reservations, the landing of 
ferries and the erection of bridges thereon, and to permit cattle to be 
driven across them, was apparently intended to confer power on him 
to grant more permanent privileges than revocable licenses give. A 
license is a bare authority to do a certain act or series of acts upon the 
land of the licensor without possessing or acquiring any estate therein. 
The Judge Advocate General's Office has always held that the Secre- 
tary of War may, by revocable license, permit a temporary use, 
terminable at his discretion, as the public interests may require, of 
United States lands under his control, provided such license conveys 
no usufructuary interest in the land, and such use does not conflict 
with the purpose for which the land is held. The word license, as 
applied to real property, imports an authority to do some act or 
series of acts upon the land of another. It passes no interest in the 



PUBLIC PROPERTY VIII. 951 

land itself and its only effect is to legalize an act which in the absence 
of the license would constitute a trespass. It may be created by 
parol, although a writing defining the exact nature and scope of the 
license is preferable.^ In 1891, the Secretary of War decided that 
military reservations and lands occupied by the War Department are 
held and occupied for military purposes only, and that no licenses for 
their use or occupation would be given without authority from Con- 
gress, unless such use or occupation would be of some benefit to the 
military service. (Circ. 12, A. G. O., 1891.) It wiU be noticed that 
this is merely the announcement of a policy, and not the denial of the 
existence of the power. And, as a matter of fact, the policy thus 
declared was not carried out. In practice it is fully recognized that 
the Secretary of War may thus license any act which would not be an 
injury to the property nor conflict with the purpose for which it is 
held. This is giving a reasonable application to the rule against the 
granting of usufructuary interests or permission to commit waste. 
So far as the ' 'sectarian purpose" for which a license may be required, 
is concerned, it is evident that such purpose does not affect the power 
to grant the license but the policy of granting it only. In the absence 
of action by Congress, the exercise of the power rests in the discretion 
of the President, and the purpose can be no restriction on his dis- 
cretion, except in so far that it must not be incompatible with— that 
is, an interference with or an obstruction to — the general use for which 
the land is held.^ C. 2961, Feb., 1897; 8360, May 18, 1900; 106U, 
June 11 and Aug. 27, 1901; 292^7, Nov. 17, 1911. 

1 Rice on Real Property, p. 505. 

2 Under date of Aug. 4," 1890, the Attorney General (19 Op. 628) said: 

"It has been the practice for many years for the Secretary of War, and sometimes 
the President, * * * to grant revocable licenses to individuals to enter upon 
military reservations and prosecute undertakings there which may be beneficial to 
the military branch of the public service as well aa advantageous to the licensees. 

" For many years a part of the tracks of the Baltimore & Ohio Railroad Co. was 
laid by a revocable license on a part of the land at Harpers Ferry used by the 
United States for a manufactory of arms. Under a similar license a part of tha land 
belonging to the fort at Old Point Comfort was allowed to be used as a site for a hotel, 
and in 1864 President Lincoln gave a license of this kind to a railroad company to 
use a part of the Government land at Sandy Hook, and in 1869 another license was 
granted to said company to use part of the same land 'so long as it may be consid- 
ered expedient and for the public interest by the Secretary of War, or other proper 
officer of the Government, m charge of the United States lands at Sandy Hook.' 
(See 16 Op. 212.) 

"In this case the license applied for [to construct an irrigating ditch] relates to a 
military reservation situated in an arid region, and therefore, in view of the advantage 
to Fort Selde'n of the use of this water, and in view of the frequent exercise of a 
similar power by granting such licenses as occasions have arisen through so many 
years, it seems clear that such license may be granted, the same to be under well 
considered restrictions and revocable at the will and pleasure of the Secretary of War." 

See also opinion of Attorney General Griggs (XXII Ops., 245), where it is said: 

"The long-continued exercise of a power of this kind by the Secretary of War, and 
the open and notorious use of Government reservations by such licensees without legis- 
lative objection from Congress, and with the adoption of no legislative rules upon the 
subject, implies the tacit assent of Congress to this custom. At the same time, I deem 
it proper to call your attention to the fact that this custom can not be maintained upon 
any grounds except the benefit of the public interests, either directly or indirectly. 
It can not be used as a basis for granting, under the guise of a temporary license, a 
substantially permanent right to maintain a railroad." 

The practice above referred to appears to have since obtained, except in the class 
of cases covered by the later opinions of the Attorney General of May 19 and July 7, 
1897 (21 Op., 537, 565). For a published list of the revocable licenses granted by 
the Secretary of War between Jan. 1, 1893, and Jan. 1, 1897, and of revocable leases 



952 PUBLIC PROPERTY VIII A. 

VIII A. A license is defined as a bare authority to do a certain act or 
series of acts upon the land of the licensor without possessing or 
acquiring any estate therein.^ R. 50, 619, Aug., 1886. The Secre- 
tary of War may, by revocable license, j)ermit a temporary use, 
terminable at his discretion, as the public interests may require, of 
United States lands under his control, provided such license conveys 
no usufructuary interest in the land,^ and such use does not confhct 
with the purpose for which the land is held. R. 49, 490, Nov., 1885; 
C. 285, Sept., 1894; 2961, Feb., 1897.. The Secretary of War may 
grant to a civilian, not a Government employee, a revocable license 
to reside and do bnsiness on a military reservation. C. 304, ^^'^> Sept., 
1894- A formal acceptance of a license is not in general necessary; 
the grantee, by acting under it, sufficiently indicates its acceptance. 
P. 59, 418, May, 1893; C. 155, Dec, 1894; 639, Mar., 1895; 10624, 
June 7, 1901; 12995, July 23, 1902. 

VIII A 1. An instrument termed a revocable license, but which in 
effect is a grant of an interest, is in excess of executive authority and 
inoperative. Thus an executive permit to erect upon United States 
land a building amounting to a permanent improvement to be used 
and occupied, or disposed of, by the licensee at his discretion as his 
property, is not a legitimate revocable license; is in fact (or, if valid, 
would be) irrevocable as conveying a usufructuary interest.^ P. 38, 
49, Jan., 1890; 56, 866, Nov., 1892; C. 3293, June 17, 1897; 6960, Aug. 
31, 1899; 10766, June 27, 1906; 18273, July 11, 1905; 22340, Nov. 14, 
1907, Mar. 15 and Apr. 17, 1908; 22600, Jan. 10, 1908. So, a so- 
called revocable license to reside upon and cultivate certain land 
of the United States at a fixed rental named, held really a lease at will, 
conveying a usufructuary interest and not legal in the absence of 
authority from Congress. P. 54, 212, June, 1892. 

VIII A 2. A license does not justify any use of the property other 
than as specified in the grant. It is therefore not assignable. R. 55, 
603, June, 1888; C. 639, Nov., 1894; 1^55, Dec, 1895. And a trans- 
fer of it avoids the license. P. 42, 456, Sept., 1890. Thus held that 
an assignment to another, by the holder of a license to erect a hotel on 
the military reservation of Fort Monroe, was legally inoperative and 
an avoidance of the license. P. 44, 2^'^, Dec, 1890. 

VIII A 2 a. Where a joint resolution of Congress authorized the 
Secretaiy of War to grant an Army and Navy contractor at Fort 
Monroe ''permission to rebuild" at that post a storehouse "upon 
such conditions and under such restrictions as the Secretary of War 
shall deem compatible with the interests of the Government," it was 
Jield that the resolution only authorized the Secretary of War to grant 
a license to build on and use lands of the United States and did not 
authorize him to grant an interest in the same. So the license thus 

granted during the same period under the act of July 28, 1892, see public document 
(not numbered), described as follows: "Granting permits for the occupancy or use 
of military reservations for nonmilitary purposes (H. Res. 250, 54th Cong., 2d sess., in 
the House of Representatives, Feb. 8, 1897)." 

Permission to land ferries and to erect bridges on military reservations and to drive 
cattle, sheep, or other stock animals across the same, is granted by the Secretary of 
War under sec. 6 of the act of Congi-ess approved July 5, 1884. 

* Angel 1 on Watercourses, 457. 

2 A license confers "no interest whatever in the land itself." 16 Op. Atty. Gen., 
212. See also 19 id., 628. 

3 See 21 Op. Atty. Gen., 541. 



PUBLIC PEOPERTY VIII A3. 958 

granted not being assignable, advised that in lieu of the approval of a 
proposed transfer thereof a revocable license be issued to the trans- 
feree. C. 639, Nov., 1894. 

VIII A 3. A license to go upon land of the United States will not 
authorize the licensee to take pubhc property therefrom. Held that 
the Secretary of War was not empowered to grant a revocable license 
allowing the hcensee to gather the fruit from trees growing upon 
Government land, such fruit being pubhc property, disposable only 
by Congress. P. 56, 134, Oct., 1892; C. 18389, Aug. 5, 1905. 

VIII A 4. The city of Miles City, Mont., applied to the Secretary 
of War for permission to enter upon the Fort Keogh Military Reserva- 
tion and make cuts for the purpose of straightening the channel of 
Tongue River, forming the boundary of the reservation, so as to pre- 
vent its encroaching upon the city. The proposed work would prob- 
ably throw 175 acres of the reservation to the opposite side of the new 
channel, thus resulting in a permanent change and perhaps in perma- 
nent damage to the reservation. Held that the Secretary of War 
would not be empowered to grant a hcense m such a case, and that 
Cengress alone could authorize the use of the land and operations 
designed. P. D, 3, Aug., 1892. 

VIII A 4 a. Held that the Secretary of War is without authority to 
license the commission of waste upon military reservations, or under 
the act of July 28, 1892, to lease them for a purpose which would 
amount to waste; but the rule here stated has not been strictly 
observed in practice. C. 2879, 2930, Feh., 1897; 3619, Nov., 1897; 
4126, May, 1898; 7900, Apr., 1900. Held,, therefore, that a license 
to take earth from a military reservation to be used in the manufac- 
ture of brick would be of doubtful vahdity. C. 4126, May, 1898. 
7900, Apr., 1900; 8I4I, May, 1900; 11131, Oct., 1901; 16827, Aug. 
81, 1904; 27798, Feh. and Mar., 1911. 

VIII A 4 b. Held that the act of July 28, 1892 (27 Stat. 321), in 
excepting "mineral or phosphate lands" from the authority therein 
given to Tease such lands "as may not for the time be required for the 
public use," should be regarded as withholding from the Secretary 
of War authority to permit of the use of such lands under revocable 
license. C. 29247, Nov. 18, 1911. Where, however, a vahd location 
of a mining claim was made prior to the order declaring the reserva- 
tion, held that the working of the claim should be permitted. C. 
28627, Sept. 1, 1911. Also held that permission may be given for 
dredging the channel of a creek within a reservation for the improve- 
ment of navigation without regard to the fact that gold may be 
obtained in the process of dredging. C. 25094, June 11, 1909, and 
Mar. 11,' 1911. 

VIII A 4 c. In an opinion dated May 19, 1897, the Attorney Gen- 
eral held with reference to the license for the construction of a Roman 
Catholic chapel on the West Point reservation, that the Secretary of 
War had no authority to grant it. He also held in an opinion, dated 
July 7, 1897, that the Secretary of War had no authority to grant 
permission for the erection of a Bethel reading room and library 
within the military reservation on Ship Island, Miss.* By act of 
July 8, 1898 (30 Stat. 722), the Secretaiy of War was given authority 
to permit the erection of buildings for religious purposes on the West 

»21 Op. Atty. Gen., 537, 565. 



954 PUBLIC PEOPERTY VIII A 4 d. 

Point reservation, but no such authority has been given with refer- 
ence to other military reservations. Advised that under the opinions 
of the Attorney General above cited the Secretary of War was with- 
out authority to license the construction of a building for a Roman 
Catholic chapel on the Fort Hancock Military Reservation. C. 6960, 
Aug., 1899. Similarly advised ^s[\i\l respect to an application for 
license to erect on the same reservation a building to be used exclu- 
sively for Union Protestant worship. C. 4974, Sept., 1898; 18273, 
July 12, 1905; 20173, Aug. 6, 1906. Also with respect to an appli- 
cation for a license for a proposed Young Men's Christian Association 
building on the Fort Hancock Military Reservation. C. 10766, July 
10, 1901. After the passage of the act of May 31, 1902 (32 Stat., 
262), authorizing the Secretary of War to license the construction, 
by the Young Men's Christian Association, of such buildings as their 
work for the promotion of the "welfare of the garrisons may require," 
lield that this authority should be regarded as giving the assent of 
Congress to the construction of buildings for strictly nonsectarian 
uses, for the purposes specified in the statute, although not constructed 
by the particular body named in the statute; and that a license 
might be given for the construction of a chapel at Fort Sam Houston, 
Tex., as a place of worship for all denominations. C. 18273, July 12, 
1906. 

On the application of a railway company for permission to con- 
struct a railway tunnel under Fort Mason, Cal., field that the char- 
acter of the improvement and the purpose for which it was desired 
were inconsistent with the nature of revocable license. C. 21619, 
June 13, 1907. Similarly held with respect to the application for a 
license for a tunnel for sewer outlet across the reservation of Fort 
Lawton, Wash. C. 21851, July 26, 1907. 

VIII A 4 d. Licenses to enter upon and use lands of the United 
States have generally been guarded with such conditions as to pre- 
vent any permanent injury to Government property. ^ Held ih.&t a 
revocable license might be given to a farmer to use for irrigation the 
water flowing on a reservation and not needed for the purposes of 
the command, provided its use by him involved no material damage 
to the land or other public property. R. Jj.6, 5, Jan., 1882; P. d. 3, 
Aug., 1892. 

VIII A 4 e. The Army appropriation act of March 3, 1911 (36 
Stat., 1048), gives authority to dispose of surplus ice and electric 
light and power "on such terms and in accordance with such regula- 
tions as may be j)rescribed by the Secretary of War." but gives no 
similar authority in respect to the sale of surplus water from a post 
water system. Held, on the application of the municipality of Par- 
ang, Mindanao, P. I., to make connection with the water main of 
the military post at that place and to use the surplus water raised 
by the Government pumping plant, that the authority conferred by 
said act of March 3, 1911, was not broad enough to cover the sale of 
water that is being acquired or appropriated by the Government 
from day to da}^, but that an arrangement might legally be made 
whereby the town would supply the fuel and labor for the purpose 
of pumping water over and above the supply needed for military 
purposes and would receive the same through the Government sys- 
tem; and that this would not be a sale -of property appropriated by 
the Government, but a license to receive water through the Grovern- 



PUBLIC PROPERTY Vlll A 5. 955 

ment system. C. 21384, Ajpr. 13, 1907. Similarly held, with respect 
to connecting the railway station with the post water system at 
Madison Barracks, N. Y., the post being directly interested in the 
sanitary condition of said station, the railway company to supply 
such labor and fuel, as a proportional share of the operating expenses 
of the plant, as the post commander might determine to be equitable. 
G. 29023, Aug. 22 and Bee. 12,1911. Held, also, that a license might 
properly be given to connect certain houses built for the occupancy 
of enlisted men and their families and situated just off a military 
reservation with the post water system, the water so withdrawn to 
be for the use of the enlisted men and their families only. C. 28586, 
June 20, 1911. 

VIII A 5. Congress has no power to grant or to provide for granting 
a license to establish and operate a ferry across navigable waters of 
the United States at a point within a State, or to prohibit the opera- 
tion of a ferry at such point. This is a matter which comes within 
the police power of a State, and it has uniformly been held by the 
courts that the States did not surrender that power by the adoption 
of the Constitution or otherwise. But the Secretary of War may 
give a revocable license for the landing of a ferry (duly licensed by the 
proper local authority) at a pier of the United States, providing such 
landing may be made without injury to the pier and so as not to 
involve an exclusive use of any part of it. P. 58, 4-50, Mar. 1893; 
C. 14729, June, 1903. 

VIII A 6. Where a stock of musical instruments has accumulated 
in excess of the legitimate demands of troops, held that in a case where 
the welfare, comfort, and contentment of the enlisted men of the 
Army would be promoted by their use, the Secretary of War may per- 
mit their use by members of a volunteer band at a post (volunteer in 
the sense that the band is not one that has been authorized by 
Congress). C. 23870, Sept. 21, 1908. 

VIII B. Revocable Hcenses (other than those instanced in the fore- 
going paragraphs) for the temporary use or occupation of the soil of a 
mihtary reservation have not unfrequently been granted under 

E roper regulations by the Secretary of War. As, for example, a 
cense to occupy the land for target practice by a gun club {P. d, 91 , 
Jan., 1893) ; for the landing of boats (P. a, 218, '^Mar., 1887; P. b, 343, 
Mar., 1889; for the landing of a submarine cable (P. a, 166, Dec, 1886; 
P. B, 172, Mar., 1888, and 323, Feb., 1889) ; or for use as a bathing beach 
(P. c, 296, June, 1891); to occupy vacant buildings (P. b, 136, 198, 
Jan. and Apr., 1888; P. c, 84, Jan., 1889, and 173, June, 1890); or 
unused defenses such as a Martello tower (P. b, 4^, July, 1887; P. c, 
427, Apr., 1892); to erect a temporary building for telephone office 
(P. A, 249, May, 1887; P. b, 231, June, 1888); for a storehouse 
(P. c, 123, and 124, ^pr., 1890); for refuge for fishermen (P. b, 354, 
Apr., 1889); for a church (P. b, ^5, June, 1887, and 4^^, Ju7ie, 
1889); for a schoolhouse (P. b, 4<^, June, 1889); for a keeper of a 
life-saving station {C. 817, Jan., 1895); to put up a stockyard or 
shipping pens for cattle to be transported by railway (P. a, 123, July, 
1886); to carry a road across a part of the land as a convenient 
continuation of a town street (P. c, 6, Oct., 1889) ; to lay a track for 
a tramway or temporary railway (P. a, 99, July, 1886; P. b, 22, June, 
1887, and 355, Apr., 1889; P. c, 213, Oct., 1890; P. d, 131, Feb., 
1893; C. IO624, June 11, 1901); to extend, maintain, and operate an 



956 PUBLIC PROPERTY VIII B 1. 

electric railway across a reservation (C. 1155, Apr., 1895; C. 16182, 
Apr. 18, 1904)', to ^ railway company to build spur tracks (C. 3221, 
May, 1897) ; to erect 'poles and carry a line of wire for telegraph or 
telephone communication (P. a, 173, Jan., 1887; P. c, 350, Oct., 1891; 
P. D, 77, Dec, 1892); to carry an electric wire across a Government 
bridge (P. a, 198 and 201, Mar., 1887; P. b, 132, Jan., 1888; P. c, 89, 
Feb., 1890); to lay underground pipes for water, oil, or gas (P. a, 
106, 118, July, 1886, and 211, Mar., 1887; P. b, 430, June, 1889; 
P. c, 481, July, 1892; P. b, 213, Jurie, 1893; C. 155, 316, Aug. and 
Sept., 1894); to construct an irrigating ditch (P. a, 94, 169, Apr. and 
Dec, 1886; P. b, 76, Aug., 1887, and 475, Aug., 1889; P. c, 26, Nov., 
1889, and 376, Dec, 1891). 

VIII B 1 . Held, with respect to the use for a post office of a room 
at Fort Bayard, N. Mex., that the mail facilities should be regarded 
as a sufficient consideration for placing accommodations at the 
service of the Post Ofhce Department, similar arrangements having 
been made at a number of other posts; that the use and rental of lock 
boxes in the Post Office Department is regulated by statutes which 
the Postmaster General can not waive; and that the existing arrange- 
ments for the use of such room should be continued so long as they 
are to the public interest. C. 26377, Mar. 17, 1910. 

VIII C. If the United States acquires a military reservation subject 
to the public easement in a highway across the same and does not 
acquire exclusive jurisdiction over the reservation, the ri^ht to con- 
trol and regulate the use of the public easement in such highway 
remains in the legislature of the State. ^ Where, in such a case, the 
reservation was in the State of New York, it was held that the consent 
of the State highway authorities and of the United States as owner 
of the fee to the highway within the limits of the reservation would 
be necessary to authorize the construction of an electric railway or 
an electric-light line on such highway, the railway and line being 
under the laws of New York a burden on the fee additional to the 
easement for a highway. If the fee to the highway were owned 
by a private individual, the railway and line could be located thereon 
without his consent on payment of just compensation; but as the 
highway was on a reservation held by the United States for military 
purposes, there was no power in the State to authorize the appropria- 
tion of any part of such reservation without the consent of the United 
States. In the absence of statutory authority the Secretary of War 
could not give" the consent of the United States so as to enlarge the 
easement to the highway, or rather so as to impose a new easement 
on the fee, but he could permit the railway and line to be located 
on the highway under a license which would impose no new easement 
on the fee and would be revocable by him at any time, such license 
to be issued preferably after the parties applying for the same had 
obtained the necessary consent from the proper highway authorities 
of the State. C. 1240, 1545, May and July, 1895; 2143, Mar., 1896; 
16182, Aug. 16, 1904. 

VIII D. The Secretary of War is not empowered to grant a revo- 
cable license to use, any more than to lease, premises not belonging 
to the United States or under his control. P. 60, 350, July, 1893. 
Thus where the United States did not own certain land upon which 

' See Faust v. Pass. Railway Co., 3 Phila., 164. 



PUBLIC PROPERTY VIII E. 957 

had been erected, under appropriation by Congress, certain struc- 
tures for the improvement of navigation, as cribs and pilework, 
held that as it had no interest in the soil but only a right of conserva- 
tion of such structures, it could not, through the Secretary of War, 
grant a revocable license to use the land for any purpose which 
would interfere with the owner's rights, without his concurrence. 
P. 4.0, 42, 232, Mar. arid Apr., 1890. Held, however, on the applica- 
tion of the owner of the land, that permission might be given such 
owner for the construction of a dock, it fully appearing that it would 
not injure the dike or obstruct navigation. R. 51, 609, Mar., 1887. 

VIII E. A revocable license to go upon a military reservation and 
use the land for a purpose not affecting the interests or convenience 
of the military authorities, is an assurance to the person that he 
will not be molested as a trespasser while his license remains unre- 
voked. When revoked, he may be required to remove his property 
without unreasonable delay. P. 50, 420, Dec, 1891. Where certain 
cattlemen were permitted to erect a temporary fence on a military 
reservation and later the permission was withdrawn, held that they 
should be allowed to remove the materials. R. 49, 615, Dec, 1885. 

VIII E 1. Where the track of a railroad company was located upon 
a military reservation by license or sufferance, tlie company having no 
right of way granted it by Congress, held that the company could be 
ejected by judicial proceedings and its property moved off the reser- 
vation; but advised that a new location be designated, to better accom- 
modate the requirements of the command, and that the company be 
given notice to move its tracks to the designated location, for the occu- 
pation of which a revocable license may be given it b}^ the Secretary 
of War. P. 42, 324, Aug., 1890; 0. 169, Aug., 1894. 

IX A 1. Held that the term "military stores," in section 1241, 
R.. S.,' covers property purchased for works of fortification, but not 
property purchased for the civil works of river and harbor improve- 
ment {C. 3419, Aug. 7, 1897; 10272, Apr. 21,1901) ; but that the regu- 
lations as to property accountability cover all property under the 
control of the Secretary of War, including river and harbor property. 
C. 34I8, Aug. 6, 1897; 3419, Aug. 7, 1897. Held, however, that 
paraCTaph 679, Army Regulations, 1895 (691 of 1910), providing for 
the aisposition of "military stores and public property condemned 
and ordered sold," related only to public property m the custody of 
the military establishment, and did not apply to property in the cus- 
tody of the Chief of the Supply Division of the AYar Department, and 
pertaining to the War Department as a civil establishment. C. 3774, 
Jan. 10, 1898. Also held, with respect to the inspection of river and 
harbor property, that the Secretary of War might authorize this to 
be done by division engineers on their tours of inspection. C. 5553, 
Dec 29, 1898. 

IX A 1 a. Held that it is doubtful whether empty barrels, boxes, 
crates, and other packages, together with metal turning, scrap 
metals, ground bone, and other waste products of manufacture which 
accumulate at arsenals, depots, and military posts, constitute "mili- 

' Section 1241, R. S., provides that: "The President may cause to be sold any 
military stores which, upon proper inspection or survey, appear to be damaged or 
unsuitable for the public service. Such inspection or survey shall be made by 
officers designated by the Secretary of War, and the sale shall be made under regu- 
lations prescribed by him." 



958 PUBLIC PROPERTY IX A 2 a. 

tarj stores" in the sense in which those words are used in section 
1241 R. S., as no inspection or survey would be necessary to determine 
whether such articles were in fact ''damaged or unsuitable" or to 
ascertain how they became so.^ C. 13628, Nov. 18, 1902, and Feb. 24, 
1908. 

IX A 2 a. Section 1241, R. S., provides: ''The President may cause 
to be sold any military stores which, upon proper inspection or sur- 
vey, appear to be damaged or unsuitable for public service. Such 
inspection or surveys shall be made by officers designated by the 
Secretary of War, and the sales shall be made under regulations pre- 
scribed by him." Held that before a sale can be made under this 
statute the property must be inspected and pronounced unsuitable 
for public service, and the regulations (A. R. 691 of 1910) require the 
sale to be at public auction. C. 965, Feb., 1895; 2127, Mar., 1896; 
8184, May, 1900; 8668, 8675, July, 1900; 8716, Aug., 1900; 16960, 
Oct. 1, 1904; 26973, June 30, 1910. 

Held, that under section 1241, R. S., unserviceable tools and 
materials, which had been in use at a national cemetery, could not 
legally be ordered to be sold upon the mere inspection and report of 
their unserviceableness made by the superintendent of the cemetery, 
but that, as required in the section, there must be first an inspection 
"bv an officer (i. e., commissioned officer) designated by the Secretary 
of War." R. 54, 609, Feb., 1888. Also field that coffee roasters could 
not be sold on the certificate of the Commissary General that they are 
unsuitable, but only " upon proper inspection and survey." C. 20302, 
Aug. 29, 1906. Held, however, with respect to a sale of the distilling 
plant at Malihi Island, P. I., that the certificate of the division com- 
mander that the plant was not needed, and recommending that it be 
sold at the a,ppraised value, coupled with such appraisement, may be 
regarded as constituting the proper inspection and survev which is 
required by statute. C. 19153, Jan. 31, 1906. 

IX A 2 a (1). The word "unsuitable," as used in section 1241, R. S., 
evidently refers to some unfitness for use other than that caused by 
being "damaged." Uniform clothing, for instance, of sizes that 
could not be used would be unsuitable. But held that the meaning of 
the word could not properly be restricted to things of a quality 
inferior to that which is required for the service. A thing may be 
unsuitable by reason of its being of such superior quality as not to be 
adaptable for the purpose for which it was intended. And lield that 
military stores can not properly be deemed unsuitable under this stat- 
ute for the sole reason that they are in excess oj the quantity required 
for use.2 P. 64, 218, Mar., 1894: C. 7796, Mar., 1900; 20011, July 9, 
1906; 24743, Apr. 8, 1909. 

IX A 2 a (2) . Certain Government property (a quantity of cord 
wood and a hay scale) was left on hand at a militarv post which had 
been abandoned. The property was no longer needed there and the 
expense of transporting it elsewhere would largely exceed its cost. 
Held, therefore, that it was "unsuitable for the public service" within 

* As a result of the above opinion par. 760, A. R. (690 of 1910), was amended so as to 
do away with the inspection and survey of the articles enumerated above. 

^ See Comptroller's opinion contra of Dec. 4, 1900 (VII Comp. Dec, 260), which, 
however, can not be regarded as having the weight of authority, inasmuch as the Comp- 
troller, in rendering the opinion, was not acting within the jurisdiction conferred 
upon him by the act of July 31, 1894. 



PUBLIC PKOPERTY IX A 2 a (s). 959 

the meaning of section 1241 R. S.^ C. 8795, Aug., 1900; 9334, Nov. 
21, 1900; 9359, Nov. 28, 1900; 10272, Apr. 22, 1901; 12491, May 6, 
1904; 12777, June 12, 1902. 

IX A 2 a (3) . There is no statute which would authorize the sale of 
timber on military reservations, and in the absence of such a statute 
the Secretary of War can not authorize such sale. C. 81 41, May, 
1900; 16983, Oct. 8, 1904; 20531, Oct. 15, 1906; 20544, Oct. 18 and Nov. 
20, 1906; 20818, Dec. 22, 1906. Held, however, that timber which 
has reached maturity, so that it begins to deteriorate, may be re- 
garded as damaged and unsuitable, and may be sold under the provi- 
sions of section 1241 R. S. C. 20531 , Oct. 15, 1906: 25236, July 8, 1909 
and Apr. 1, 1910; 25558, Sept. I4, 1909, and Oct. 4, 1910. Similarly 
Jield, with respect to timber thrown down and injured by a tornado, 
that if on inspection and survey it should be found unsuitable, it 
should be disposed of under this section. 0. 205Jf.4, Nov., 1906; 
20818, Dec. 22, 1906. Also held that driftwood coming ashore on a 
military reservation, if it has any value, must be treated as other 
property under the control of the War Department. C. 20720, 
Dec. 4, 1906. 

IX A 2 a (4). Where for sanitary reasons it was necessary to clear 
a reservation of timber and underbrush, held that under the provisions 
of section 1241 R. S., a contract might properly be entered into for the 
clearing of the reservation of timber and underbrush, the contract to 
provide that the timber and underbrush should become the property 
of the contractor, the proper clearing of the ground in such case being 
regarded as an incident of the sale of the timber and underbrush. 
0.29123, Oct. 16,1911. 

IX A 2 b. In view of the general authority vested in the President 
and Secretary of War by the provision, in regard to the sale of military 
stores damaged or unsuitable for the public service, of the act of 
March 3, 1825 (now contained in sec. 1241, R. S.), held that such 
stores might legally be sold on credit, if such mode of disposition was 
deemed for the public interest. R. 29, 330, Oct., 1869. 

IX A 2 c. Held that a noncommissioned officer who acted as 
auctioneer at a public sale of condemned quartermaster stores could 
not legally be paid, out of. the proceeds of the sale, a commission of 
10 per cent, or any other commission or compensation, for his services 
as auctioneer. The pay and allowances of all enlisted men are fixed 
by law, and, in the absence of any authority in the statute providing 
for such sales or other statutory provision, such a compensation must 
necessarily be without legal sanction. P. 60, 363, July, 1893; 62, 95, 
Oct., 1893. But held that a civilian employee hired by the Quarter- 
master's Department, under the provision for ''hire of teamsters and 
other employees" in the appropriation for "transportation of the 
Army and its supplies," whose pay is not fixed by "law or regulations," 
may legally be paid for services as an auctioneer at a public sale of 
condemned quartermaster property. C. 2567, Sept., 1896; 6988, 
Sept., 1899; 11983, Feb. 1, 1902. 

IX A 2 ,d. Where oil was purchased in barrels with the understand- 
ing that the empty barrels should be returned at an agreed valuation, 
held that the transaction should not be regarded as a sale, but as a 
settlement under contract, so that no inspection would be required. 
C. 1324, ^ay 16, 1895. 

1 See VII Comp. Dec, 260, to same effect. 



960 PUBLIC PEOPEETY IX A 2 f. 

IX A 2 f. On request by a veterinarian for permission to make 
medical experiments on a condemned Cavalry horse with a view to 
embodying the results of the same in a report to the department, 
held that there was no legal objection to granting the authority 
requested. C. 3792, Jan. 17, 1898. Also, held that condemned can- 
non might legally be used for casting bronze tablets for marking lines 
of battle. 0. 25359, July 21, 1909. And where a searchlight had 
been condemned and ordered sold, on application for the loan of the 
same to a National Homefor Disabled Volunteer Soldiers, ^eM that it 
was within the discretion of the Secretary of War to defer the sale 
for such time as he might deem warranted ; and that the requirements 
of the statute are directory to the extent of vesting the incidents of 
the sale, including the date, in the discretion of the Secretary of War. 
C. 25236, Mar. 18 and Apr. 1, 1910. 

IX A 3. Held that the provision of section 3618, R. S,, requiring that 
"all proceeds of sales of old material, condemned stores, supplies, or 
other public property of any kind" shall, with certain specified excep- 
tions, be deposited and covered into the Treasury as miscellaneous 
receipts and not withdrawn except by authority of a statutory appro- 
priation, applied to the proceeds of surplus cuttings of material for 
clothing manufactured by the Quartermaster's Department of the 
Army — the same not being within any of the designated exceptions 
and, therefore, that the proceeds of such cuttings could not legally be 
retained and used in the business of that department. R. 4^, 653, 
May, 1880. Held, further, that this statute, as amended by the act 
of June 8, 1896 (29 Stat. 268), requires the "net proceeds" only to 
be deposited in the Treasury, so that all expenses of sale should be 
paid from the proceeds, and if no sale takes place, any cost of adver- 
tising would constitute a proper charge against the appropriation foi' 
contingencies of the Army. C. 25236, Mar. 18, 1910. 

IX A 3 a. Books for a post library purchased out of post exchange 
funds or donated to the library are not "public property" within the 
meaning of section 3618, R. S. Proceeds from a sale of them may 
therefore legally be expended in the purchase of new books. C. 2649, 
Sept., 1896. So, where the property was not public property of the 
United States but pertained to the road fund of the District of Alaska 
to be used and expended in its behalf, held, that the moneys received 
from sales should be applied to the purposes for which the fund was 
appropriated by Congress. C. 20353, Sept. 10, 1906.. 

IX A 4. Where property not covered by section 1241, R,. S., is to 
to be disposed of, held, that if the property has been in use and 
repaired, so that its value is less than its cost, the Secretary of War 
may fix a price at which the propertv shall be disposed of. C. 26372, 
Mar. 17, 1910. 

IX B 1. Held, that the provisions of section 23, chapter 75, act of 
March 3, 1863, prohibiting the sale, &c., of their arms, &c., by soldiers, 
and declaring that no right of property or possession should be 
acquired thereby, &c., were not limited in their operation to the 
period of the civil war, but were still in force, ^ and that an officer of 
the army would therefore be authorized to seize arms, &c., disposed 
of contrary to such prohibition, whenever and wherever found. R. 
22, 525, Dec, 1866. But inasmuch as there have been sundry 

' See these provisions as now incorporated in the Revised Statutes, in sections 1242 
and 3748. 



PUBLIC PROPERTY — PUNISHMENT. 961 

authorized sales of arms and other ordnance stores since the end of 
that war, advised, that officers, before making seizures, should assure 
themselves that the parties in possession have not acquired title in a 
legal manner. R. 29, 187 and 20^, Aug., 1869; G. 11219, Sept. 
12,1901. 

IX B 2. Section 3748, R. S., provides that clothing furnished by 
the United States to a soldier shall not be bartered, exchanged, 
pledged, loaned or given away, and that no person not a soldier or 
officer of the United States who has possession of any such clothing 
so furnished and which has been the subject of such sale, barter, etc., 
shaU have any right, title, or interest therein, but that the same may 
be seized and taken wherever found by any officer of the United 
States, civil or military, and shall thereupon be delivered to any 
quartermaster or other officer authorized to receive the same, that 
the possession by a civilian of clothing, etc., furnished to a soldier 
shall be presumptive evidence of the sale, barter, exchange, etc. The 
language of this statute indicates that a summary seizure is intended 
to be authorized and the fact that the military officer is authorized 
to seize the property shows that no writ or other process of the courts 
is required. But while the power to summarily make the seizure 
exists, the officer authorized to take possession of the property may 
also assert his rights through the courts, and this latter course may 
be in many cases the preferable and better one. C. 5303, Nov., 1898. 

CROSS REFERENCE. 

Applying to own use See Articles of War LX A 3 a. 

Blank receipts unauthorized See Pay and allowances IBS. 

Captures See Claims VI A. 

War I C 6c (3) (6,. 
Damage to See Civilian employees II B. 

Public money X. 

Deserter's responsibility for See Desertion XIX A. 

Exchange of old for new See Army I A 7. 

Hay on reservations See Command V A 3 g. 

Loan of See Army I B 2 b (5). 

Militia See Militia IX to X; XVI G. 

Misappropriation of See Articles of War LX A 3. 

Occupation of by United States See Claims VII C 1. 

Post exchange See Government agencies II J 5. 

Recruit embezzlement See Desertion XXII A. 

Responsibility for by militia... See Militia XVI G. 

Sale price of See Army I B 2 b (4). 

Salvage See Claims VI B. 

Secretary of War See Army I B 2 b to c. 

Soldier's clothing See Pay and allowances II A 3 a (4) 

(a); (c). 
Title, evidence of. See Discipline XI A 17 a (2) (a) [1] [d]. 

PUBLIC WORKS. 

See Eight-hour law II; III. 

PUNISHMENT. 

Addition to, illegal See Discipline XIV E 2; 2 a; 9 h; XVII A 

4g(3). 

By military court See Discipline XVII A to C. 

Cadets See Army I D 3 to 4. 

Deserter See Desertion X A to D. 

Discharge without honor is not See Discharge III A to G. 

Dishonorable discharge See Discharge IV A to E. 

93673°— 17— 61 



962 PUECHASE RAILROAD. 

Imposition of See Discipline XII B 3 d- to h. 

Pardon See Pardon. 

Summary See Discipline I E 2. 

Unauthorized See Discipline XVII B 1 a to g. 

Pay and allowances III D 1. 

PURCHASE. 

Expenses preliminary to See Appropriations VIII. 

Jurisdiction See Public property V C 1 ; E 1 to 2. 

Land See Public property II A. 

Navigable waters X D to E. 

Supplies from allies See War I C 6 d (1). 

Target range See Militia VI C 1 b. 

QUARANTINE. 
Inspection See Tax III K. 

QUARTERMASTER'S DEPARTMENT. 

See Army I G 3 b (2) to (3). 
Campaign badges See Insignia op Merit III B 1. 

Retirement I K 5. 

Clothing See Pay and Allowances II A 3 a (4) to 

(5). 

Details to See Army I B 2 a (1). 

Electric faris for hospitals See Appropriations XLI . 

Forage See Pay and Allowances II A 2 d to e. 

Heat and Light See Pa«y and Allowances II A 1 to 2. 

Appropriations XL. 

Purchases from military prison See Discipline XVII A 4 g (2) . 

Quarters See Pay and Allowances II A 2 b to c. 

Transportation See Pay and Allowances II A 2 a to b. 

QUARTERMASTER GENERALS OF STATES. 

See Militia III H. 

QUARTERMASTER SERGEANT. 

Appointment of. See Army I E 2 b. 

QUARTERS. 

Commutation of, and heat and light See Pay and Allowances II A 1 c (3) ; 

(6). 

Retired officer See Retirement I K 2 d. 

Right to, accrues when See Pay and Allowances II A 1 c (1). 

Traveling on duty See Pay and Allowances II A 2 b (3). 

QUASI PUBLIC FUNDS. 
Loss of. See Government Agencies I D to E. 

QUORUM. 

General court-martial See Discipline VII C 1. 

RAILROAD. 

Military reservation See Public Property VIII E 1. 

National cemetery. .- See Public Property IV A 2 a. 

Right of way See Public Property III C; VI E to F. 

Seizure See War I C 6 b (1) (6). 



bank: synopsis. 963 

RANK. 
I. ACTUAL RANK. 

A. Is Not Office — May be Attached to Office Pag^ 964 

1. Office without rank. 

B. Date of Attachment of Rank. 

1. Appointment, acceptance or date mentioned in nomination. 

a. Appointment or included mentioned date. 

b. Vacancy. 

(]) Acts of October 1, 1890, and April 26, 1898. . . Page 965 

c. Medical Corps. 

(1) Date of appointment or commission. 

(2) Period to captaincy runs from date of appointment. 

(a) Under act of June 23, 1874. 
(6) Under act of April 23, 1908. 

d. Bureau chief. War Department. 

(1) On reappointment, rank antedated. 

C. Detailed Staff. 

1. Officers have line rank only unless otherwise provided by law. 

2. Retirement for disability with detailed rank. 

D. Enlisted Men. 

1. Noncommissioned officers rank from date of appointment. . . Page 966 

2. Warrant made continuous is a reappointment with antedated rank. 

3. Rank can not be created except by act of Congress. 

4. Warrant is evidence of rank — if lost, replaced. 
n. RELATIVE RANK, OFFICERS. 

A. Fixed by Date of Actual Rank. 

1. Confirmed in orders different from order of appointment. 

2. Interpretation of section 1219, Revised Statutes. 

a. Fixed by acceptance of original commissions Page 967 

3. Relative rank once fixed can not be changed; exceptions. 

a. Sentence of court-martial. 

(1) To retain present number on lineal list. 

(2) To be reduced files. 

(3) To be reduced to foot of list. 

b. Pardon. 

(1) Of unexecuted sentence. 

(2) Of executed sentence. 

c. Act of Congress Page 968 

B. Volunteers. 

1. Relative rank can not antedate muster-in. 

2. Act of April 22, 1898 (30 Stat. 361). 

C. By Act of Congress. 

1. Sword master. United States Military Academy. 

D. Service as a Naval Cadet Does Not Count. 
m. LINEAL RANK. 

A. Loss of Rank by Sentence op General Court-Martial Mfans Loss 
OF Lineal Rank. 
IV. BREVET RANK. 

A. Incident of Full Rank of a Lower Grade Page 969 

B. Assignment to Duty Under Brevet Ra.nk. 

1. Rights when so assigned. 
V. SUSPENSION FROM RANK. 

A. Does Not Lose Right to Rise in Files in His Grade. 

B. Does Not Affect Rights Previously Vested. 

C. Under Act of October 1, 1890. 

1. Dates from date when right to promotion accrued, 



964 BANK I A. 

I A. Rank is not office. It may be attached to office. Thus the 
office of "Chief of the Record and Pension Office" had attached to it 
at one time the rank of colonel and at a later time the rank of briga- 
dier general. Also, the office of "Inspector General" may have the 
rank of colonel of Cavalry, and the office of "Judge Advocate Gen- 
eral" has the rank of brigadier general, and the office of "Chaplain'" 
may have the rank of captain or major, and the office of "Adjutant 
General" has the rank of brigadier general, etc.* G. 6020, Mar. 10, 
1899; 19425, Mar. 17, 1906; 4747, Aug. 6, 1898; 17508, Feb. 15, 1905. 

I A 1 . Held that although veterinarians are officers of the Army 
they have no rank. C. I66O4, July 20, 1911. Similarly Jield that 
the teacher of music at the United States Military Academy, West 
Point, N. Y., is an officer of the Army without rank.^ Cf. 25070, 
Oct. 13, 1909. 

I B 1. There are three dates from which the rank and 'precedence 
of an officer of the regular establishment may be determined, viz, 
(1) the date of his appointment or commission; (2) the date of his 
acceptance of the appointment; and (3) a date anterior to that 
upon which the appomting power was fully exercised, which date is 
established by the date of rank conferred in the appointment or com- 
mission of the officer. 0. 23135, Apr. 3, 1909. 

I B 1 a. An accepted appointment or commission takes effect in 
respect to rank as of and from the date on which it is completed by 
the signature of the appointing power, unless the appointment or 
commission specifies a fixed date for the attachment of the rank, in 
which case the rank is held from such specified date.^ R. 39, 609, 
July, 1878; 43, 208, Feb., 1880; C. 7588, Jan. 25, 1900; 10698, June 
18, 1901; 12599, May 12, 1902; 14473, Apr. 11, 1903; 15262, Sept. 
17, 1903; 16732, Aug. 16, 1904; 19650, May 7, 1906; 21053, Feb. 6 
and 18, 1907; 23688, Sept. 16, 1909; 23983, Oct. 7, 1908. 

I B 1 b. From the organization of the Government the practice 
of specif3dng dates of rank in appointments and commissions has 
not always been uniform. Held that the rank of an officer may relate 
back to the date of the occurrence of the vacancy to which the com- 
mission has reference." C. 19425, Mar. 17, 1906; 14473, Apr. 11, 
1903, and Apr. 9, 1906. 

> Wood V. United States, 15 Ct. Cls., 151; 107 U. S., 414; 40 Ct. Cls., 110; 25 Op. Atty. 
Gen., 591. If Congress changes the rank attached to an office it is not necessary that 
the incumbent should be nominated and confirmed by the Senate in order that the 
new rank shall attach. (22 Op. Atty. Gen., 381, 480.) 

An officer while holding one office which has ordinarily a certain rank, may acquire 
a new and higher rank. (Digest 2d Comp. Dec, Vol. Ill, par. 879.) Also rank and 
pay do not necessarily run together. (Ibid., par. 892.) Also see act of July 7, 1898 
(30 Stat. 714). 

Interesting data concerning "Rank, etc., of certain Army officers," and a resum^ 
of legislation relating to changes in the rank of officers, are set forth in Senate Report 
No. 2153, 58th Congress 2d session. 

^ Paymasters' clerks in the Army are officers and have a military status, but they 
have no rank. See act of Mar. 3, 1911 (36 Stat. 1044). 

Similarly veterinarians are officers and have no rank. See sec. 20 of the act of 
Feb. 2, 1901 (31 Stat. 748). IX Comp. Dec, 455. 

See sec 1111, R. S., as amended by the act of Mar. 2, 1901 (31 Stat. 912), and the 
act of Mar. 3, 1905 (33 Stat. 853). 

The act of Mar. 3, 1905, also conferred relative rank on the sword master at the Mili- 
tary Academy. 

3 See 6 Op. Atty. Gen., 68; 17 id., 362. 

*See Wood v. U. S., 107 U. S., 416. 



BANK I B 1 b (l). 965 

IB 1 b (1). Held that when officers are appointed under the acta 
of October 1, 1890 (26 Stat. 562), and of April 26, 1898 (30 Stat. 
364), the rank conferred should relate back to the date of the vacancy. 
C. 17201, Dec. 1, 1904; 15262, Sept. 8, 1903. 

I B 1 c (1). Under the act of July 5, 1884, etc., lield that officers 
of the Medical Department take rank in the Medical Department in 
accordance with the dates of rank specified in their appointments or 
commissions therein, regardless of their relative rank in the Army at 
large. O. 16120, Apr. 5, 1904; 19613, Apr. 28, 1906; 19650, May 
8, 1906; 23135, Mar. 10 and Apr. 3, 1909; R. 39, 491 and 508, Mar., 
1878.' 

I B 1 c (2) (a). The five-year period under the actof June 23, 1874, 
begins to run as to lineal and relative rank at the date of rank speci- 
fied in the appointment, and as to pay five years from the date of accept- 
ance of appomtment. C. 23135, Mar. 11 and Apr. 5, 1909. 

IB 1 c (2) (b). Held that officers in the Medical (]orps who, prior 
to the approval of the act of April 23, 1908, have served three years 
or more as assistant surgeons with the rank of first heutenant, 
should be commissioned as captains, and those who may hereafter 
serve three years in the grade of first lieutenant, beginning from the 
date in which the office of first lieutenant in the Medical Reserve 
Corps vested, should be similarly promoted with rank from date three 
years subsequent to that in which the appointing power was fully 
exercised in each case, their rank on the list of captains in the Medical 
Corps being determined in either case by the date of their original 
entry as commissioned officers in the Medical Department of the Army. 
C. 23135, May 21, 1908. 

IB 1 d (1). Held by the Secretary of War that a chief of bureau 
appointed by the President for a term of four years may lawfully be 
reappointed to such office. Held also that as the grant of rank to an 
officer upon reappointment is an incident of the constitutional ap- 
pointing power, such chief of bureau may, on reappointment, be given 
rank back to the date of his first appointment as chief of bureau. C. 
14730, Dec. 2 1,1905. 

I C 1. The requirements of the act of February 2, 1901 (31 Stat. 
748) , which operate to preserve the rank of line officers while they are 
sei-ving by detail in the several branches of the staff, are so clear as to 
negative the view that it was intended that during such periods of 
detail they should be clothed with any other rank or a different status 
in respect of rank or precedence than that wliich they brought with 
them from the line of the Army.^ C. 15686, Jan. 8, 1904; 25677, Oct. 
13,1909. 

I C 2. Where an officer of the line, serving with increased rank as a 
detailed officer in a staff department, incurs disability while so serv- 
ing, held to be entitled to retirement, if found to be qualified therefor 
by a retiring board, with the rank of the office in which he is serving 
in the detailed staff.^ C. 25677, Oct. 15, Dec. 16, 1909. 

1 See 16 Op. Atty. Gen., 56, 605. 

^ Officers detailed in the Ordnance Department under the act of June 25, 1906 (34 
Stat. 455), and as acting judge advocates under the act of Feb. 2, 1901 (31 Stat. 751), 
may be selected from the grade next below. 

* The Judge Advocate General 's Department and the Medical and the Engineer 
Departments are excepted from the operation of sec. 16 of the act of Feb. 2, 1901, 
covering details to the departments named in that section. 



966 RANK I D 1. 

I D 1. A company commander on duty with the home battalion on 
July 1 appointed a private to the position of corporal, and as the regi- 
mental headquarters was outside the limits of the United States the 
battalion commander acted and on July 13 disapproved the appoint- 
ment. Held that the private became a corporal on July 1 and held 
that rank and was entitled to pay as such from that date until July 13. 
C. 22346, Nov. 11, 1907. 

I D 2. At discharge at expiration of an enlistment a noncommis- 
sioned officer vacates his position and rank. Held that a reappoint- 
ment is necessary in order that he may again have the rank which he 
held during the expired enlistment. Held, further, that in cases of 
warrants made continuous under the regulations the regulation 
operates to reappoint a soldier to the position vacated by him at ter- 
mination of enlistment, with rank antedated to the same date that 
held in the previous enlistment. C. 19959, Nov. 19, 1910. 

I D 3. In view of the fact that rank can not be conferred except 
by act of Congress, lield that under the act of July 7, 1898 (30 Stat. 
7^1), which created the grading of company cooks and fixed the pay 
as that of corporal, but did not specifically attach rank to that posi- 
tion, the rank corporal did not attach to the position of company 
cook. C. £1443, Apr. 26, 1907. 

I D 4. As a warrant is evidence of the rank held by a noncommis- 
sioned officer, lield that if a warrant is lost without fault of the non- 
commissioned officer it may be replaced with notation placed thereon 
assigning rank back of the date of original appointment of the non- 
commissioned officer to the grade which carries the rank in question. 
C. 25535, Sept. 7, 1909. 

II A. The general rule is that relative rank in the Army is regulated 
by the actual rank held by the officer in his corps and this by the date 
given him in his commission in such corps.^ P. 60, 210, June, 1893. 
See also R. 15, 49, Mar. 11, 1865; 21, 171, Jan. 19, 1866; 23, 439, 
Apr., 1867; C. 18668, Oct. 3, 1905. 

II A 1. Where to certain appointments made on the same date 
a particular order was given, with the intention of having the ap- 
pointees rank in that order, but subsequently, in sending the names 
to the Senate for confirmation, this order was by mistake reversed; 
held, after a confirmation of the appointees as thus sent, that this 
mistake and action could properly have no effect to change the rela- 
tive rank of these officers as given and Jixed by the original act of 
appointment. R. 42, 254, ^pr., 1879. 

II A 2. Section 1219, R. S., provides a rule for determining the 
relative rank of officers of the same grade and date of appointment 
by reference to time of service. Held that the time of service as a 
commissioned officer in the Army is alone to be considered.^ P. 40, 
51, Mar., 1890; R. B. 4I, 238, May, 1878; 55, 672, June, 1888; C. 
2805, Dec, 1896; 7449, Dec, 1899; 7790, Mar., 1900; 7869, Apr., 
1900; 15262, Sept. 8, 1903; 16520, June 29, 1904; 17381, Jan. 13, 
1905. 

1 See 13 Op. Atty. Gen. 441; 16 Op. Id., 56, 605, 652; 17 Op. Id., 10, 12. For rule 
in case of transfer from one corps to another, see par. 47, A. R., 1910 Ed. Under the 
provisions of the act of Mar. 3, 1911 (36 Stat. 1058), this rule is departed from in the 
case of certain officers advanced under that act and known as "additional officers." 

2 See 13 Op. Atty. Gen., 441; 15 id., 411; 17 id., 34, 362, and 402; 23 id., 232. 



RANK II A 2 a. 967 

II A 2 a. Two officers of the Regular Army were commissioned as 
officers of Volunteers in 1898 on the same date. Held that the rela- 
tive rank will be determined hj reference to the date of acceptance 
of the two officers of their origmal commissions upon first entry into 
the service. C. 4^54, June S, 1898; 7282, Nov. 15, 1899; 7790, Mar. 
8, 1900. 

II A 3. As relative rank among officers of the same grade is estab- 
lished by referring back to the dates when actual rank attached to 
the offices which they respectively hold, held that such relative rank 
of two officers can not be changed except by act of Congress, or pur- 
suant to the sentence of a general court-martial, or an exercise or the 
pardoning power.^ C. 21054, Feb. 6, 1907; 15262, Sept. 8, 1903; 
22359, Bee. 2, 1907; 24568, June 27, 1911. 

II A 3 a (1). A second lieutenant was sentenced ''to retain his 
present number on the lineal list of second lieutenants for three 
years." Held that this sentence necessarily deprived him of all right 
to promotion so long as it continued in force. Lieutenants junior to 
him may be advanced without any regard to him and precisely as if 
he were not on the list at all. The promotion of an officer in such a 
status would have the effect of a pardon. P. 47, 293, May, 1891. 

II A 3 a (2). A lieutenant was sentenced "to be reduced two files 
in regimental rank." As tiie regimental rank of a line officer is the 
basis of his rank in his arm and in the Army at large, held that his 
reduction on the regimental list involved a corresponding reduction 
on the lists of lineal and relative rank. R. 55, 620, June, 1888. 

II A 3 a (3). An officer, as the result of two successive trials by 
court-martial, stood sentenced to be reduced to the foot of the list of 
lieutenant colonels of Cavalry and to remain tliere without advance- 
ment for two years. Held that his status was equivalent to that of 
an officer sentenced to lose files for two years, and that his sentence 
was a continuing punishment, subject to be discontinued by pardon. 
R. 51, 677, Mar., 1887. And further held that such a sentence was a 
legal one, and that as the officer had no rank in the Army independent 
of his rank in the Cavalry arm, the former rank being incidental to 
and measured by the latter, his relative Army rank was necessarily 
affected by the sentence in the same manner as his lineal rank. P. 29, 
487, Jan., 1889. 

II A 3 b (1). A sentence of a first lieutenant " to be reduced in rank 
so that his name shall appear in the Army Register next below the 
name of" a certain other first lieutenant of his regiment, held not a 
punishment executed upon approval, so as to be beyond remission, 
but, like a sentence to lose files, a continuing punishment removable 
by pardon.2 P. 56, 434, Dec, 1892. 

IlA3b (2). In 1874 an officer, then a first lieutenant, was sen- 
tenced ''to be reduced in rank so that his name should thereafter be 
borne on the rolls of the Army next after that of" a certain other first 
lieutenant of the same regiment. This officer was promoted to a 
captaincy May 10, 1888, and the officer under sentence was similarly 
promoted August 20, 1889. Upon an application by the latter (in 
1890) to have his sentence remitted, held that, by the operation of the 
first of these promotions, the sentence was rendered irrevocable. 
A remission or pardon would not at this time restore the officer to 

1 See 8 Op. Atty. Gen., 223. ^ 12 Op. Atty. Gen., 547; 17 id., 17 and 656. 



968 RANK II A 3 e. 

the position he occupied prior to the sentence, nor divest the rights 
of others acquired by promotion during the pendency of his reduc- 
tion. The sentence had indeed been fully executed and was there- 
fore beyond the reach of the pardoning power. P. J^l, 380, July, 
1890. 

II A 3 c. An executive department has in general no power either 
to undo an executed legal act of the past or to indemnify a party for 
injury suffered by him therefrom. Thus where an officer clamied that 
he had been unjustly prejudiced by not having had a higher relative 
rank in his grade given him by his original appointment, but it 
appeared that said appointment had been confirmed by the Senate, 
accepted, and held for nearly 13 years, and that to increase as desired 
the relative rank thereby conferred would divest the rights of 12 
officers who now ranked the claimant in his grade, advised, that how- 
ever unjustly his appointment, when made, may have discriminated 
against this officer, his case was one in which Congress alone could 
grant the appropriate relief.* R. 43, 206, Feb., 1880. 

II Bl. The act of March 3, 1899 (30 Stat. 1065), appropriated 
money for the pay of officers of certain United States Volunteers for 
a certain time that had elapsed after they had reported for duty and 
prior to their being commissioned. Held that this time should not be 
counted in fixing relative rank under section 1219, R. S.^ C. 7050, 
Sept. 21, 1899, and Oct. 6, 1900; 7 869, Apr. 7, 1900. 

II B 2. Held that the relative rank of volunteer officers mustered • 
into the service under the provisions of April 22, 1898 (30 Stat. 361), 
dated from the date of appointment. C. 4^39, May 18, 1898. 

II CI. The master of the sword at the United States Military 
Academy is an officer and under the provisions of the act of March 3, 
1905 (33 Stat. 850), was given the ''relative rank" of a captain, 
mounted. C. 18009, Mar. 23, 1910. 

II D. Held that naval cadets, not having been commissioned offi- 
cers, could not, upon afterwards becoming lieutenants in the Ai-my, 
compute, for relative rank, their period of service as such cadets. 
P. 25, 214, June, 1888. 

III A. Under the provisions of section 2 of the act of June 18, 
1878 (20 Stat. 149), and the act of October 1, 1890 (26 Stat. 562), 
all officers of each arm of the service are placed upon one list in 
accordance with their rank in the several grades of office of which 
that arm is composed. This list resulting from such arrangement 
represents their Imeal or military rank and serves to determine their 
rights in respect of advancement in the military service. Held that 
a sentence "to be reduced thirty files in military rank" means a loss 
of thirty files in lineal rank, i. e., it means that an officer's name will 
be reduced tliirty files in the list of officers of his grade in his arm. 
C. 12440, Apr. 30, 1902; 17201, Dec. 1, 1904; 21249, Mar. 15, 1907; 
21590, May 31, 1907. 

* The authority of the executive department of the Government to grant relief ia 
limited by strict law and to a few subjects. Congress, in our system, is the fountain of 
general relief. By its authority to authorize special appointments, and to dispose of 
the public money, it can meet and adeq^uately provide for nearly all the applications 
for relief presented by officers and soldiers of the Army which the Executive is not 
empowered favorably to act upon. 

^ Relative rank of volunteer officers in the military service of the United States 
under sec. 1219, R. S., must be determined by reference to the time of muster-in and 
not from the time of enrollment. (23 Op. Atty. Gen., 406.) 



EANK IV A. 969 

rV A. Brevet rank can, properly, neither be conferred, nor take 
effect, except as an incident to full rank of a lower grade.* R. 21, 
608, Aug., 1866; C. 2122, Mar. 10, 1896; 12419, Apr. I4, 1902. 

IV B. Under section 1211, R. S., an officer may legally be assigned 
to duty according to his brevet rank for a special command or duty, 
and in such case the assignment will not be effective generally, but 
only for the purposes of such command or duty and during its con- 
tinuance. Thus held that an officer assigned to duty according to his 
brevet rank "while in command of" a certain department, could 
legally exercise the authority and privileges of such rank only when 
holding such command, and for the purposes of the same.^ R. 4-^, 
21, Oct., 1878. 

IV B 1. AVlien an officer has been duly assigned to duty or com- 
mand according to a certain brevet rank, that rank becomes his 
actual military rank for the period of the assignment. He is empow- 
ered to exercise the authority which belongs to such rank under the 
circumstances, to wear the uniform, and to be addressed by the 
title of such rank, etc. Held, however, tliat a colonel assigned to 
command according to a brevet rank of general was not entitled to 
the aids-de-camp or a general except bv the authority of the Secre- 
tary of War. R. 42, 21, Oct., 1878. 

V A. Suspension from rank does not deprive the officer of the 
right to rise in files in his grade, upon the promotion, for example, of 
the senior officer of such grade. The number of an officer in the 
list of his grade is not an incident of his rank, but of his appointment 
to office as conferred and dated, and, as we have seen, suspension does 
not affect the office. Moreover loss of files is a continuing punish- 
ment, and if held to be involved in suspension from rank, the result 
would be that, for an indefinite period after the term of suspension 
had expired, the officer would remain under punishment, the sen- 
tence imposed by the court being thus added to in execution, contrary 
to a well-known principle of military law. R. 33, 69, 109, June, 1872. 

V B. It is the effect of a suspension from rank that the officer 
loses for the time the minor rights and privileges of priority and 
precedence annexed to rank or command. Among these is the right 
to select quarters relatively to other officers. And where quarters 
are to be selected by several officers, one of whom is under sentence 
of suspension from rank, the suspended officer necessarily has the last 
choice. Or rather he has no choice, but quarters are assigned him by 
the commander; for, being still an officer of the Army, though without 
rank, he is entitled to some quarters. But advised that an officer sen- 
tenced to be suspended from rank could not, because of such suspen- 
sion alone, be deprived of quarters previously duly selected and 
occupied at the time of the suspension, such a sentence not affecting 
a right previouslv accrued and vested.^ R. 27, 24I, Sept., 1868; 29, 
672, Feb., 1870; 37, 536, May, 1876; P. 50, 371, Nov., 1891. 

» See 13 Op. Atty. Gen., .31. 

2 But see now act of March 3, 1883 (22 Stat. 457), which provides that oflScerg of 
the Army shall be assigned to duty or command according to their brevet rank, only 
when actually engaged in hostilities. 

^ But the Secretary of War decided, May 27, 1876, that an officer under suspension 
is not deprived of his usual right to quarters according to rank. This was reaffirmed 
by the War Department in 1892. See Par. VII, Circ. 1, A. G. O., 1892. 



970 BANK RECEIVER. 

V C 1. Held that when an officer fails in his examination for promo- 
tion under the act of October 1, 1890 (26 Stat. 562), with the resultant 
effect of suspension from rank for one year, the suspension will date 
from the date when the right to promotion accrued. C. 29327, Bee. 
19, 1911. 

CROSS REFERENCE. 

Acquisition of. See Command I A 1. 

Chief of Philippine Constabulary See Command I C. 

Contract surgeoji See Army I G 3 d (4) (c). 

Deserter is a '''' private" See Desertion VII A 1. 

Distinguished from command See Command I C. 

Loss of See Discipline XII B 3 f (1) to (3) (c); XIV 

E9k. 

Muster-out See Volunteer Army IV E. 

Nunc pro tunc See Pay and allowances I B 1 a. 

Pardon of loss of See Pardon IV to V. 

Regular and militia officers See Militia VI B 2 b. 

Retired officer, 'ank increased. See Retirement I C to D. 

Retirement See Retirement I B 4 to 5. 

Suspension See Absence I B 1 m (1). 

Discipline VIII G 1 c; c (1); XII B 3 
f(3)(a);(b);(c). 

Office III B 1 a (2); (3). 

Retirement I B 6 c to d. 
Unauthorized assumption See Articles of War LXII D. 

RATIONS. 

See Army I G 3 b (3) to (4). 

Civilian employees See Laws II A 1 e (1). 

Destitute persons See Gratuity IV. 

Laws II A 1 e (1). 

READVEETISEMENT. 

Rejection of bids See Contracts VI J 1. 

REAL PROPERTY. 

See PuPLic Property I A 3. 
Can not be alienated See War I C 6 a (2). 

REAPPOINTMENT. 

Cadets Se" Army I Did (1) to (3); 2 b. 

Dismissed officer See Office III A 4 c; F 1; IV E 2 c (2). 

7s not pardon See Pardon XV. 

REASONABLE DOUBT RULE. 

Retiring boards , See Retirement I B 2 e. 

RECEIPTS. 

Blank not to be given See Pay and allowances I B 3. 

Private property taken See Claims VII B 5. 

RECEIVER. 

Bidder See Contracts XXXVII. 

Bridge company See Navigable waters IV D. 

Contractor See Contracts XIV F. 



RECOMMENDATION RED CROSS I. 971 

RECOMMENDATION. 

By court See Discipline XI A 11; 11 a; XII E to F. 

Medal of honor See Insignia of merit I A 2 a; d; d (1). 

RECORDER. 

Court of inquiry See Retirement I K 2 e. 

Retiring hoard See Retirement I B 1 d (2). 

RECORD OF GENERAL COURT-MARTIAL. 

See Discipline IV C 3 to 4; XIII to XIV. 

Copy to accused See Article of War CXIV A. 

Correction of See Discipline IX N 6 ; 6 a; b. 

Evidence of. See Discipline XI A 13. 

Lost See Discipline XIV E 6; XV G 1. 

Pay and Allowances III C 1 e (1). 

Reasons for returning See Discipline XIV E 4 to 5. 

Transmission of See Discipline IV M. 

RECOVERY. 

Public property See Militia IX F. 

RECRUIT. 

Clothing, abandoned See Public Property I L. 

Muster of is not muster in See Volunteer Army II B 1 a. 

Running away See Desertion XXII A. 

Statement of age See Enlistment I A 2 a. 

RECRUITING OFFICER. 

Deserter, receipt of. See Desertion V B 8 a; b; 9; F 10 a; b. 

Penalty envelopes See Communications II A 2 a. 

RED CROSS. 1 

I. AS AN INTERNATIONAL EMBLEM. 

A. International Use Differentiated from Domestic Use Page 971 

B. Purpose of Geneva Convention and Scope Thereof in Regard to 

Civil Volunteer Sanitary Formations Page 972 

C. Red Cross Has No International Value Except by Treaty. 

D. No Authority for Charitable Organizations to Penetrate Foreign 

Country Except With Consent of Latter's Government. 
n. AMERICAN NATIONAL RED CROSS. 

A. Rights of, in Time of Peace Page 973 

B. Status of, in Peace or in War. Duty of the Government in Con- 

nection Therewith. 

C. Duty of Military Where Emblem is Misused. 

I A. In considering questions affecting the use of the Red Cross 
or Geneva emblem care must be taken to differentiate between the 
use of the emblem under the international rules of the Geneva Con- 
vention and its use under the charter granted by the Congress to the 

^ Prepared by Lieut. Col. John Biddle Porter, judge advocate, assistant to the 
Judge Advocate General, United States Army. 



972 BED CEOSS I B. 

American National Red Cross, act of January 5, 1905 (33 Stat. 599), 
amended by act of June 23, 1910 (36 Stat. 604). C. 16453, June 7, 
1911. 

I B. The main purpose of the Geneva Convention is to amehorate 
the condition of the wounded of armies in the field and is intended to 
cover the case of nations at war. For this purpose the convention 
has adopted the Red or Geneva Cross as an emblem of neutrality to 
be used only to protect those persons and things which, under the 
convention, are to be deemed neutral and devoted to the care and 
comfort of the sick and wounded. It is provided that, under the 
auspices of a government, civil sanitary formations may be authorized 
for use in war, and for the purpose of being distinguished shall use 
the Geneva Cross in the same manner as the regular military or 
naval sanitary formations of the Government. It is also agreed, in 
furtherance of the general purpose of ameliorating the condition of 
the sick and wounded, that the civil sanitary formations of a neutral 
nation may, with the consent of their own government, offer their 
services to a belligerant power, and if accepted by such belligerent, 
assist in caring for the sick and wounded of those at war. It 
follows that where such civil organizations of a neutral, with the 
consent of their own government, offer their services to a belligerent 
power and these are accepted by that power, they become, for the 
time being, a part of the sanitary establishment of its army. Thus, 
in order that a civil organization may, by international law, serve, 
under the Geneva emblem, a foreign belligerent power, there must 
be consent of the home government and acceptance by the foreign 
belligerent. Such civil organization is then only entitled to the same 
protection under the Red Cross as are the organizations of the bellig- 
erent with whom they are serving, and should one of the powers at 
war not have acceded to the Geneva Convention, the volunteer civil 
neutral sanitary formation is no more protected by the Geneva Red 
Cross than are the sanitary formations of the power with which they 
are serving. C. 16458, June 7 ,1911. 

I C. From the point of view of international law the emblem of 
the Red Cross has no value or meaning except that which has been 
placed upon it by treaty. The emblem was first created by the 
Geneva Convention of 1864, the rules established for its use having 
been brought up to date at the conference of 1906, also held at Ge- 
neva. Each nation which accedes to that convention thereby enters 
into a treaty with each of the other nations who have acceded, to 
carry out and respect the terms of the convention. The United States 
has acceded, the President having so proclaimed on August 3, 1907, 
Except as between the acseding nations there is no requirement of 
international law that the Red Cross shall be recognized or respected. 
C. 16453, June 7, 1911. 

I D. There is clearly no authority for a charitable organization to 
penetrate a country at peace with its own, for the purpose of render- 
mg aid to the wounded during a war in that country, except it be 
with the full consent of a belligerent operating therein. Should such 
charitable organization penetrate into a foreign country under any 
other conditions than those established by the Geneva Convention, 
no value whatever attaches in international law to its use of the 
Geneva Cross. Whatever protection that emblem may insure under 



BED CROSS II A. 973 

such circumstances must be due to the municipal laws of the country 
penetrated. The entry of the American National Red Cross into 
Mexico during the civil troubles in that country in the year 1911, the 
Mexican Government not having accepted the tender of service made 
by the organization, would be an instance of such unauthorized en- 
trance and the members of the American National Red Cross entering 
Mexico would not be entitled to the protection contemplated by the 
Geneva Convention. C. 164'53, June 7, 1911. 

II A. The American National Red Cross has under its charter the 
right, in time of peace, to continue and carry on a system of national 
and international relief and apply the same in mitigating the suffer- 
ings caused by pestilence, famme, fire, floods, and other great national 
calamities. Under paragraph 3, section 4 of the charter, the Red 
Cross would appear to be entitled to all proper assistance from the 
Army, but it must be remembered that the international status 
granted by the Geneva Convention to the Red Cross is intended 
solely for the amelioration of the condition of the wounded of armies 
in the field. C. 16453, June 7, 1911. 

II B. Under the charter of the American National Red Cross, 
granted to that organization by Congress (act of Jan. 5, 1905, 33 
Stat. 599, and act of June 23, 1910, 36 Stat. 604), the use of the 
Red Cross emblem under certain circumstances and for certain pur- 
poses is forbidden and made a misdemeanor, punishable in a Fed- 
eral «ourt by fine and imprisonment. The foregoing, it mil be 
observed, however, is a municipal law of the United States and can 
in nowise affect the conduct of a person outside of that country. 
Where, in time of peace, in the presence of the military forces of the 
United States, a misuse is made of the Red Cross emblem such as 
has been determined by Congress to amount to a misdemeanor, it is 
not the duty of the military to exercise any other authority than 
would be exercised by them in the case of. any other misdemeanor 
by a civilian. In case of a war, however, in which the United States 
is a participant, it will be for the Federal Government to see that any 
aid society operating with our armies conforms to the requirements 
of the Geneva Convention and to the laws and regulations govern- 
ing the conduct of those who are operating with the armies of the 
United States. (Art. 10, Geneva Convention of 1906.)^ C. 16453, 
June7,1911. 

II C. Within the jurisdiction of the United States it is a mis- 
demeanor for a person to falsely represent himself as a member of 
or an agent for the American National Red Cross for the purpose of 
soliciting, etc., money or material, or for any person to wear the Red 
Cross or an imitation thereof for the fraudulent purpose of inducing 
the belief that he is a member of or an agent for the American Na- 
tional Red Cross (36 Stat. 604). The military authorities, however, 
would have no right to arrest such a misdemeanant and are charged 
with no greater duty in regard to him than would be any citizen; 
that is, to lodge information in regard to the allege"d misdemeanor 
with the nearest peace officer or other person charged with the 
enforcement of the criminal law. C. 16453, June 7, 1911. 

' See proclamation of the President, Aug. 22, 1911, published in G. O., No. 170, 
W. D., 1911. 



974 REDETAIL REGULAR ARMY. 

REDETAIL. 

See Office III D 1 d; 2 b. 

Bureau chief. See Rank I B 1 d to e. 

College duty See Military instruction II B 1 e. 

Ordnance department See Army I G 3 b (4) (c). 

REDUCTION TO THE RANKS. 

See Articles op War LXXXIII C 2. 

See Discipline XII B 3 f (1) (a). 

Noncommissioned offixcr See Army I E 1 b. 

Unauthorized for officers See Discipline XVII B 2 a (1). 

REENLISTMENT. 

See Desertion VI A to D. 
See Enlistment I D to II. 

Bonus for See Pay and allowances I C 5 c. 

Deserter See Discharge II B 2 a. 

Pardon XIV. 
Pay not stopped or forfeited to reimburse See Pay and allowances III B 6 a; C 1 

previous claim. a (2). 

Voluntary See Enlistment I A 1 

REEXAMINATION. 
Failure See Retirement I B 6 c to e. 

REGIMENTAL COMMANDER. 

See Post commander. 

See Commanding officer. 

Appointing power See Command V C 1 a; b; c. 

Rank I D to E. 
Authority to reduce noncommissjioned offi- See Command V C 2. 
ccrs. 

Brigade post See Articles of War LXV B. 

Certificate of merit See Insignia of merit II B; E. 

Convening officer See Articles of War XXX C. 

Exceeds authority See Articles of War XXIX A. 

Reports on officers See Articles of War XXIX B. 

REGIMENTAL COURT. 

See Articles op War XXX A to D. 
See Discipline XVI A 1; E 5. 

REGIMENTAL STAFF OFFICER. 

Appointment of. See Command V C 1 a. 

REGULAR ARMY. 

See Army I G to H. 

Joint encampment..'. See Militia II A; B; VI B 2 to C. 

Philippine duty See Army II G 2 a; a (1). 

Philippine Scouts See Articles of War LXXVII A 1. 

Army II G 1 a. 

Tenure of office See Office III G. 

Volunteer engineers See Volunteer Army III A 1. 



REGULATIONS REMOVAL OF CHAEGE OF DESERTION. 975 

REGULATIONS. 

See Laws II to III. 

Extra statutory limitation See Insignia op merit I A 2 d. 

Force of law See Volunteer Army IV A 1. 

Mandatory See Discipline III A. 

Statute can not be abridged See Army I B 2 f . 

Statute can not be contravened See Army I D 3 b (1). 

Unwarranted quasi legislation by See Insignia op merit II F. 

REIMBURSEMENT. 

Allies for loan See War I C 6 d (1) . 

Damage to public property See Pay and allowances III B 5. 

Illegal forfeiture See Pay and allowances III E 1. 

Militia officer See Militia VI B 1 e (7); (8). 

Overpayment See Government agencies II J 7. 

Private parties, disbursements of, to destitute See Gratuity IV. 
persons. 

Public property I A 5. 

Service by allies See Claims VII B 6. 

Soldier, of expense See Articles of War LIX Gib. 

Transportation of horse See Pay and allowances II A 2 a (2) (a) 

Unauthorized to cancel private debt See Pay and allowances III B 6. 

REJECTION OF BIDS. 

See Contracts VI J to K. 

RELATIVE RANK. 

See Rank II to III. 
Medical Department See Rank I B 1 c (2) (a). 

RELEASE. 

Bidder See Contracts IX to X. 

From contract See Contracts VIII. 

RELIEVING THE ENEMY. 

See Articles of War XLV to XLVI. 

RELIGIOUS SECTS. 
Exemption from service See Enlistment II B 2. 

REMISSION. 

By summary discharge See Pardon XIII. 

Forfeiture .'See Pay and allowances III E 1. 

Grounds for See Discipline XV F to G. 

Pardon VI. 

Prisoner of war See War I C 11 c (5) to (6). 

Sentence See Discharge II B 2. 

Pardon VI, XVI.- 

REMOVAL OF CHARGE OF DESERTION. 

See Desertion V B 5; XIV A 7; XVI A 
toF. 



976 REMUSTEK RESIDENCE I. 

REMUSTER. 

See Volunteer Army II F to G. 

RENT. 

See Claims VII C 1. 

From assignee See Public property VII B 1 a. 

Nonpayment of. See Public property VII B 1 b; 2 b; e. 

To enemy See Pardon X. 

REPAIR. 

Public property See Militia IX E. 

REPORTER. 

Appointment of, for court See Discipline I V B 2 ; 2 a. 

Claims for pay See Army I G 3 a (4) («) [3]. 

Court of inquiry or hoard See Discipline XVIII D. 

Duties See Discipline I V C 3 a. 

Swearing of See Discipline I V C 4 a. 

REPORTS. 

Congressional committees See Laws I B 6. 

REPRIMAND. 

See Discipline XII B 3 d. 
By reviewing authority See Discipline XIV E 9 i; 1. 

REPUDIATION. 
Of contract See Contracts XXII to XXIII. 

RESIDENCE. 

I. DOMICILE AT ENTRY INTO SERVICE Page 976 

A. Not Lost by Entry into Service Page 977 

1. Intention to return is presumed. 

B. Change of Domicile. 

1. What action required? Page 978 

n. OF MINOR. 

A. Unemancipated. 

B. Emancipated. 

I. In the case of an officer or enlisted man in the mihtary establish- 
ment, held that his domicile during his continuance in the service is the 
domicile or residence which he had when he received his appointment 
as an officer or entered into an enlistment contract with the United 
States. Tliis is true whether such domicile was original, i. e., estab- 
lished by nativity, or by residence with the requisite intention, or de- 
rivative, as that of a wife, minor, or dependent. This residence or 
domicile does not change while the officer remains in the military ser- 
vice, as his movements as an officer are due to military orders; and 
his residence, so long as it results from the operation of such orders, is 



RESIDENCE I A. 977 

constrained, a form of residence which works no change in domicile.^ 
C. 12023, Apr. 28,1911; P. 60, 223, June, 1893. 

I A. A person in the mihtary service of the United States, is 
entitled to vote where he has his legal residence provided he has the 
quahfications prescribed by the laws of the State. He does not lose 
such residence by reason of being absent in the service of the United 
States. The laws of a particular State in wliich he is stationed and 
has only a temporary as distinguished from a legal residence may, how- 
ever, permit hmi to vote in that State after a certain period of actual 
residence. C. 472, Oct., 189 J^ and 601, Nov., 1894; ^877, Feb. 23, 1898; 
14852, June 25, 1903;^ 15367, Oct. I4, 1903. 

I A 1. If a legal residence in a certain State has once existed, mere 
temporary absence, however long continued, as the result of an enlist- 
ment or enlistments in the Army, will not destroy it.^ R. 50, 392, 
June,^ 1886. Liability to taxation or other liability, as a resident of a 
certain locality, is not ordinarilj'' affected by the enlisting or holding 
of a commission in the Army and the being stationed at a place other 
than such locality; the party being at such place not by his own voli- 
tion, and the animus revertendi to the original domicile being presumed 
to still subsist.3 R, 55, 623, Jan., 1888; C. 14852, June 25, 1903. 

I B. An officer may, however, establish a new legal residence or 
domicile where he is stationed, although as he is subject to orders, 
the evidence of such intention should be clear and convincing, such as 
the acquisition of real property for a home, with the intention of living 
there whenever not required to be elsewhere under military orders.* 
C. 21091, Feb. I4, 1907. In the cases of officers who are not subject, 
or likely, to have their places of habitancy changed by superior mili- 
tary authority, such as the chiefs of the staff corps or departments, 
whose duties require them to have their offices permanently in Wash- 
ington, less evidence of intention is required. This is also true as to 
officers on the retired list. The question of residence, where it is at 

* Graham v. Commonwealth (51 Pa. St., 258); Wood v. Fitzgerald & Wingate (3 Ore- 
gon, 568); G. 0. 13, First Mil. Diet., 1868; Taylors. Beading, (4 Brewst., 439); Delvin v. 
Anderson (38 Cal., 92). "Soldiers of the United States do not acquire or lose their 
residence by reason of being stationed in the line of duty at any particular place, no 
matter how long their occupancy of such place may continue." Mead v. Carrol 
(6 D. C, 338); People v. Holden (28 Cal., 123); Hunt v. Bichards (4 Kans., 549); 
Inhabitants of Brewer v. Inhabitants of Linnaeus (36 Maine, 428); Tibbetts v. Town- 
send (15 Abb. Prac, 221). 

^ Brewer v. Linnaeus, 36 Maine, 428. 
^ Jacobs, Law of Domicile, 401. 

* Beale Cases on Conflict of Laws, vol, 1, p. 168, where the following extract is taken 
from Attorney General v. Pottinger (6 H. & N., 833, 744 (1861)), where the question 
was whether Sir Henry Pottinger at the time of his decease was domiciled in England 
or in India: "The only doubt arises from this, that he continued in the service of the 
East India Company, and might have been called upon at any time to serve in India. 
* * * I think that, notwithstanding Sir Henry Pottinger continued in the Indian 
Army, his purchase of a dwelling house in Eaton Place, his continuing to hold it whilst 
absent from England, his return to it as his place of residence and his home, and his 
reference to it in his will as his residence, abundantly establishes his English domi- 
cile." See also 14 Cyc, 849, as follows: "In general it can be said that a domicile 
is neither gained nor lost during military service, and although a soldier, if both the 
fact and intent occur, can establish a new domicile during his term of enlistment, this 
will not be deemed to have occurred in the absence of the clearest and most unequivo- 
cal proof . No domicile will be acquired merely from having been stationed in the line 
of duty at any particular place." 

93673°- 17 62 



978 RESIDENCE RESTORATION TO DUTY WITHOUT TRIAL. 

all doubtful, will in the main, as in the cases of civilians, be deter- 
mined by the evidence of an animus manendi, as exhibited by the acts 
and declarations of the party. R. 29, 85, July, 1869; 30, 215, 528, 
Mar. and July, 1870. 

I B 1 . An officer who has resided elsewhere can not niake a certain 
place his residence by merely declaring that it is so, or that he has 
elected it to be such. He must take some definite action indicating 
an intention and an ability to permanently remain, such as providing 
himself with a dwelling there, removing his familj^ there, entering 
into business there, etc^, to constitute the place designated his legal 
residence or domicile in law. P. 63, 443, May, 1892; C. 21091, Feb., 
14, 1907. 

II A. Held that an unemancipated minor can not acquire a resi- 
dence different from that of his father.^ C. 1220, Apr., 1895; 6615, 
Dec. 23, 1910, Fel. 24 and Mar. 6, 1911. 

II B. Held that an emancipated minor can acquire a honajide actual 
residence different from that of his father. C. 6615, June 17, 1899. 

CROSS REFERENCE. 

Cadets See Army I D 1 a to b. 

Retired officer See Retirement I O. 

Retired soldier See Retirement II B 4 to 5; 7. 

Taxation See Tax I E. 

RESIGNATION. 

Affects status See Discipline VIII I 1; 1 a. 

Cadet See Army I Did (1). 

Civilian employee See Civilian employees XI A to B; B 2. 

Good of the service See Office IV D 6. 

Office See Office IV D to E. 

Officer See Discharge II A 2. 

RESTORATION OF OFFICER. 

By appointment only See Office III F 1. 

To Volunteers See Office V A 3 to 4. 

RESTORATION TO DUTY. 

While under sentence See Pardon XV D 1 ; 3. 

RESTORATION TO DUTY WITHOUT TRIAL. 

See Discipline III E 2 a. 
See Pardon XV D 2; 2 a; 4. 
Constructive pardon See Desertion IX N ; XV D. 

Discipline IX F 1 a (1). 

Charge of desertion not removed See Desertion XVI E. 

Deserter See Desertion VI A; XII A to B; XIV 

A3. 

Discharge II B 2. 

Enlistment I D 3 c (7); (14). 

Effect of See Retirement II A 1 b; 1 c. 

Fraudulent enlistment See Enlistment I A 9 f (1). 

Fraudulently enlisted dishonorably dis- See Enlistment I A 9 f (4); g (1); (3); h, 
I charged soldier. 

Fraudulently enlisted general prisoner See Enlistment I A 9 f (3). 

Illegally dishonorably discharged soldier See Discharge XVI G; G 1; 5. 

Make good time lost See Articles of War XLVIII A. 

' The act of Mar. 1, 1843 (5 Stat. 606) requires the individual selected for appoint- 
ment to the Military Academy to be an actual resident of the District. (See also 13 Op. 
Atty. Gen., 130). 



EETAINED PERCENTAGES RETIREMENT: SYNOPSIS. 979 

RETAINED PERCENTAGES. 
Forfeiture See Contracts XIX 0. 

RETAINERS TO THE CAMP. 

See Articles of War LXIII A to E. 

RETALIATION. 

Lnvs of War See War I C 9. 

RETENTION IN SERVICE AFTER ORGANIZATION MUSTERED 

OUT. 

See Volunteer Army IV C to D. 
Date of muster out See Volunteer Army IV D 2 to 3; 3 b. 

RETIRED OFFICER. 

Civil office, eligibility for See Retirement I G 3 to 4. 

Contract ivith Post Office Department See Contracts XV C. 

Forage '. See Army I G 3 b (2) (c). 

In military service See Retirement I G 2 to 3. 

Claims X. 

Instructors at colleges See Military instruction II B 1 a, 4 f . 

Militia duty See Militia VI A 2 b. 

Militiaman See Militia XI L. 

Public office not exercised Sec Retirement I G. 

Taxation See Tax I to II. 

RETIRED SOLDIER. 

Certificate of merit See Insignia op merit XX E, 

Comm.ission in militia See Militia III K. 

Does not hold office See Claims X. 

Musician See Army bands I C 4. 

Taxation See Tax I to II. 

RETIREMENT. 
I. OFFICERS. 

A. Voluntary. 

1. 30 years' service. 

a. Date of Page 983 

b. Count service United States Military Academy. 

c. Midshipman service does not count. 

2. 40 years' service 

a. Count service United States Military Academy. 

B. Involuntary. 

1. Retiring board. 

a. Acquired disability. 

(1) In volunteers. 

(2) As an enlisted man. 

b. Reasons for retirement. 

(1) Can not be retired for. 

(a) Moral obliquity Page 984 

(b) Future contingent incapacity. 

c. Jurisdiction of board. 

(1) Not limited as to time. 

(2) Taking of depositions. 

(3) Charge can not be tried. 

(4) Officer present. 



980 retieement: synopsis. 

I. OFFICERS— Continued. 

B. Involuntary — Continued. 

1. Retiring board — Continued. 

d. Procediu-e. 

(1) Duties of members neglected. 

(2) Duties of recorder Page 985 

(3) Minority report may be submitted. 

2. Findings. 

a. " Active service " defined . 

b. "Permanent" defined. 

(1) Test— Is disease curable ? Page 986 

c. "Incident of the service" or "Line of duty" defined. 

d. "Line of duty" if no evidence to the contrary. 

e. "Not line of duty " — reasonable doubt rule. 

3. President's action. 

a. Finding is recommendation only. 

b. Disapproval — no change in status Page 987 

c. Discretion if "Not line of duty" — rule. 

d. One action exhausts President's power. 

4. Increased rank. 

a. If in Ordnance Department. 

b. If vacancy occurs before approval. 

5. No authority for retirement. 

a. Of Philippine Scout oflBcer. 

b. Of officer who contracted disability as contract surgeon. 

6. Examining board under act of October 1, 1890. 

a. Not a court for trial of moral delinquent. 

(1) Officer entitled to full hearing on such issue. . Page 988 

b. Physical incapacity in line of duty. 

(1) Healed before retirement. 

(2) Not subject for retiring board or general court-martial 

except for new causes. 

c. Incapacitated otherwise than for physical disability in line of 

duty. 

(1) One year's suspension — not subject for retiring board. 

(a) Second examination: foimd incapacitated phys- 
ically Page 989 

(2) Second examination found physically not in line of 

duty; wholly retired . 

(3) First and second examinations found physically not 

line of duty; wholly retired. 

(4) Medical officer found professionally; second examina- 

tion found physically in line of duty. 

d. Examination passed; officer becomes insane; second examina- 

tion or retiring board authorized Page 990 . 

e. President's action. 

(1) Members not sworn: proceedings disapproved. 

(2) Effects a change of status. 

f. President's discretion. 

(1) Officer contracts morphine habit in taking medicine. 

7. Examining board under act of March 3, 1909 (35 Stat., 737). 

a. Examination of major, Medical Department. 



retirement: synopsis. 981 

OFFICERS— Continued. 

C. Rank OF Retired Officers Increased Under Act of April 23, 1904(33 

Stat., 264). 

1. Status during Civil War. 

a. West Point cadet on leave. 

b. Midshipman. 

c. Civil employee Page 991 

d. Contract surgeon. 

e. Militiaman not called forth. 

2. Status since Civil War. 

a. Convicted by a general court-martial. 

b. Promoted under act of October 1, 1890. 

c. Officer deceased. 

D. Date op Retirement Page 992 

E. Retirement Order Can Not be Revoked, 

F. Uniform, Title, etc., of Retired Officers. 

G. Office. 

1. Retired officer does not exercise "public office." 

2. Retired officers are in military service. 

a. In sense of section 549S, Revised Statutes. 

b. Subject to trial by general court-martial. 

0. May enter Government Hcspital for the Insane. 

d. May be kept in ci\dl court jurisdiction Page 993 

e. Exemption of salary from taxes. 

f . In sense of section 1223, Revised Statutes. 

3. Retired officers may hold civil office. 

a. Federal. 

(1) Elective or appointive. 

(2) Limitations. 

(a) Diplomatic or consular office. 

(b) $2,500 salary Page 994 

(3) Clerk in Quartermaster's Department. 

b. State and municipal Page 995 

H. Employment. 

1. Counsel before general court-martial. 
I. Burial. 
K. Active Duty. 

1. "Active duty" and "Active service" defined. 

2. "Staff duty not involving service with troops." 

a. Limited to existing military establishment Page 996 

b. Rule. 

c. "Service with troops" defined. 

d. Quartermaster at Fort Bayard, N. Mex.; quarters. 

e. Court of inquiry. 

f . General court-martial Page 997 

3. College duty. 

a. Pay and allowances. 

b. College in the Philippines. 
0. College in Porto Rico. 

4. Widow' not entitled to six months' gratuity. 

5. Can not buy or draw furniture from quartermaster, 
L. Pay. 

1. Longevity. 



982 retirement: synopsis. 

I. OFFICERS— Continued. 
M. Mileage. 

1. To home after retirement. 

2. Witness before a court-martial Page 998 

N. Wholly Retired. {See also Retirement, IB 6 to 7.) 

1. Reasons for. 

2. Full and fair hearing. 

8. One year's pay and allowances Page 999 

4. No authority for transporting goods to home. 
0. Transportation to Home. 
n. ENLISTED MEN. 

A. What Service Counts for Retirement? 

1 . Fraudulent enlistment service. 

a. Previously discharged on certificate of disability. 

b. Previously discharged without honor. 

c. Previously discharged dishonorably. 

d. Fraudulent enlistment without prev'ous discharge. 

2. Active service — act of September 30, 1890 Page 1000 

3. Commissioned service counts. 

a. As officer Philippine ('onstabulary does not count. 

4. War service counts doulile. 

a. In Civil War. 

b. Foreign service. 

(1) "Actual service" defined. 

(2) On transport in Philippine Islands Page 1001 

c. Service of natives in Philippines does not count double. 

B. Status op Retired Soldiers. 

1. They are not discharged. 

2. They do not hold office. 

3. They are subject to military control. 

a. May be tried for not paying debts. 

b. Subsistence while in confinement. 

4. Residence. 

a. Abroad with permission. 

b. On military reservation with license Page 1002 

5. Government Hospital for the Insane. 

6. Soldiers' Home. 

7. Transportation to home and subsistence. 

C. Pay May be Stopped. 

1 . To make good overpayment. 

2. To reimburse post exchange, etc., funds. 

D. May Hold Office. 

1. In militia. 

2. In Philippine Scouts. 

3. Municipal. 

4. Superintendents of national cemeteries. 

E. May Accept Employment. 

1. In Government service. 

2. In civil life. 

a. As a musician '. , Page 1003 

b. As instructor in high school. 

c. As interpreter to foreign commissioner. 



RETIREMENT I A 1 a. 983 

n. ENLISTED MEN— Continued. 

F. Status Terminated. 

1. By decease. 

2. By enlistment. 

3. Discharge. 

G. Retirement Order Can Not be Revoked. . - 
m. CIVIL EMPLOYEES. 

I A 1 a. Held that an officer who has appHed for retirement after 
30 years' service ^ will not pass to the retired list before the date 
when he receives notice, or oecomes legally chargeable with notice, 
of the order for his retirement. ^ C. 20430, Sept. 2%, 1906. 

I A 1 b. Held that cadet service at United States Militaiy Academy 
can be legally included in computing the 30 years' service upon which 
an officer may be retired on his own application in the discretion of 
the President, under section 1243, R. S.^ C. 1699, Sept. 3, 1895. 

I A 1 c. Held that service rendered as a cadet at the Naval Acad- 
emy can not be computed in determining an officer's eligibility for 
retirement after 30 years' service. C. 22352, Nov. 11, 1907. 

I A 2 a. The act of June 30, 1882, 22 Stat., 118, provides that 40 
years' service, "either as an officer or soldier," shall entitle an officer 
to be retired. Held that, in computing the 40 years' service, the 

f)eriod served by the officer as a cadet at the Military Academy could 
egally be counted.^ P. 49, 379, Oct., 1891. 

I B 1. Section 1248, R. S., authorizes a retu'ing board to inquire 
into and determine the facts toucliing the nature and occasion of the 
disability of any officer who appears to be incapable of performing 
the duties of his office. No mention is made in tliis legislation as to 
the manner m which the attention of the Secretary of War is to be 
dra^vn to the case of an officer as to whose capacity for active service 
doubt has arisen. Hc^d that it may be due to a discovery by any 
superior commander in the ordinary performance of the officer's duty, 
or it may result from the report of an inspector, or be made the sub- 
ject of representation by a department commander, etc. C. 22399, 
Nov. 22, 1907; 26612, Apr. 6, 1910. 

I B 1 a (1). It does not affect the authority to retire under section 
1251, R. S., that the incapacity of the officer may have been found 
to have resulted from a wound received by him while in the volunteer 
service before entering the Regular Army. B. 26, IO4, Oct., 1867; C. 
15892, Mar. 18, 1904. 

I B 1 a (2). Held that a commissioned officer was entitled to be 
retired on a disability which had been contracted while he was an 
enlisted man. C. 12277, Mar. 22, 1902. 

I B 1 b. Officers have been retired on three-fourths' pay for "heat 
exhaustion and overwork causing melanchoHa and dementia" {C. 
12277, Mar. 22, 1902); for "chronic Bright's disease of the kidneys" 
(C. 17113, Nov. 31, 1904); for "deafness" {C. 17177, Nov. 18, 1904); 
for "valvular disease of the heart and Bright's disease" (0. 17223, 

1 Sec. 1243, R. S. » gee cir. 13, A. G. O., Dec. 5, 1891. 
'^ See cir. 10. 1895. 



984 BETIREMENT I B 1 b (l) (a). 

Bee. 5, 1904); for "valvular heart disease"^ (C. 23059, Oct. 10, 1908); 
etc. C. 15871. Feb. 5, 1904; 15978, Feb. 27, 1904. 

I B 1 b (1) (a). Held that the "cause" of ''incapacity" intended 
in section 1249, R. S., was not moral obHquity (U. 19189, Feh. 12, 
1906; 22399, Nov. 22, 1907), and that the matter of the financial 
integrity of the officer was beyond the jurisdiction of the board. So, 
held that the board was not authorized to recommend the retirement 
of an officer because he did not pay his debts. P.. 41, 4^3, July, 
1890. Held also that the inability of a disbursing officer to furnish 
a bond when duly required to do so was not sufficient ground for his 
retirement. P. 64, 53, Feb., 1894; G. 22399, Nov. 22, 1907. 

I B 1 b (1) (6). Held that the law— sections 1248 and 1249, R. S.— 
contemplated an existing and not a purely prospective and contingent 
incapacity; and that an inquiry into an officer's general efficiency 
could be pertinent only in so far as it could be regarded as going to 
show that his inefficiency, if found, was the result of an impairment 
of health. P. 35, 49, Sept., 1889. 

IB 1 c (1). The investigation of a retiring board is not affected 
by any Hmitation of time, as is that of a court martial, viz, by article 
103. Such a board may therefore inquire into the matter of a disa- 
bihty, however long since it may have originated. R. 20, 619, May, 
1866. 

I B 1 c (2). As the object of giving a retiring board the power of a 
court martial is to insure a full investigation and a fair hearing and 
to enable it satisfactorily to determine the question referred to it, 
held that in the exercise of these duties the board is the judge of 
whether or not the taking of a deposition is necessary. C. 13046, 
Sept. 23, 1907. 

I B 1 (3). The provision of section 1248, R. S., giving to a retir- 
ing board such powers of a court martial and court of inquiry as niay 
be necessary to enable it to inquire into and determine a question 
of alleged disability, does not authorize such a board to entertain a 
charge of a military offense as such or to try an officer.^ R. 20, 619, 
May, 1866. 

I B 1 c (4). An oflicer has the right to be present before the retiring 
board which is considering his case. Held that the board should not 
proceed in his absence imless he has waived his right to be present. 
C. 26756, May 24, 1910. 

I B 1 d (1). In view of the disposition of retiring boards to rely 
upon the report of the medical officers, the findings in many cases 
are unsatisfactory, and the evidence as to the cause of the disabihty 

1 See 27 Op. Atty. Gen., 163, Jan. 22, 1909, in which it is held that an officer may 
be retired because of ill temper, irritability, lack of self-control, boorishness, dis- 
courtesy, or similar cause, if they render him incapable of performing the duties of 
his office. Also see 27 Op. Atty. Gen., 14, July 10, 1908, in which the word "incapa- 
ble" is defined to mean that an officer is "no longer responsible for his own actions 
or subject to infirmities or disabilities which make the reasonable fulfillment of his 
military duties impossible for him, notwithstanding an honest desire and firm pur- 
pose on his part to fully discharge them." 

2 Par. 9, cir. 10, A. G. O., 1895, which directs that when an officer is ordered before 
an examining or retiring board original or copies of all official records affecting his 
character or efficiency shall be furnished the board. See 27 Op. Atty. Gen., 14, 
July 10, 1908, in which it is held that an officer can not be retired for the acts or omis- 
sions which are alleged as evidence of incapacity. 



RETIREMENT I B I d (2). 985 

is SO meager as to make it impossible for the Secretary of War to 
determine whether or not the disabihty is in line of duty. Held 
that nothing short of a strict enforcement of section 1248, K. S., 
will apply an adequate remedy.^ C. 15600, Feb, 24, 1904; 15913, 
Feh. 16, 1904; 22743, Feb, 12, 1908. 

I B 1 d (2). Sections 1246-1252, R. S., charge the board itseK 
with the conduct of the investigation ^ and furnish it with a recorder 
to assist it in its inquiry. It may vest in the recorder such duties 
as it deems best and may charge him wholly or in part with the pro- 
duction and presentation of testimony, and it may also direct him 
to prepare replies to the contentions of counsel, but Tield that unless 
so specially directed by the board the duties of the recorder are 
restricted to the summoning of witnesses and the preparation of the 
record. C. 17288, Bee. 19, 1904. 

I B 1 d (3) . Held that a member (or members) of a retii-ing board 
may submit a minority report when he feels that his view will assist 
the President in reaching a conclusion on the question before the 
board. C. 29401, Jan. 21, 1912. 

I B 2 a. The term "active service," as used in statutes regulating 
retirement, simply relates to that period in the career of an officer 
which intervenes between his appointment to military office, and his 
vacation of such office due to death, resignation, dismissal, or retire- 
ment. During this period all officers are presumed to be physicallv 
and mentally capable of performing the duties of the office into whicli 
they have been lawfully inducted. If the contrary appears, the 
laws vests authority in the Secretary of War to convene a retiring 
board and to charge it with an inquiry into the nature and extent of 
the disability, with a view to ascertain whether the officer is incapaci- 
tated from performing the duties of his office. C. 22399, Nov. 22, 
1907; 23200, May 5, 1908. 

I B 2 b. Upon the examination of an officer for promotion, it was 
discovered that he had a rupture and was using a truss, and the evi- 
dence before the board showed that the rupture could be removed by 
an operation which was so certain of success that of the seventy cases 

^ "A retiring board may inquire into and determine the facts touching the nature 
and occasion of the disability of any officer who appears to be incapable of performing 
the duties of his office, and shall have such powers of a court-martial and of a court of 
inquiry as may be necesary for that purpose." (Sec. 1248, R. S.) 

The opinion of a surgeon must not be taken as conclusive. See 7 Op. Atty. Gen., 
166, in which it was held that: 

"In the first place, a casualty is a question of fact, to be proved according to the 
ordinary rules of evidence and to the reasonable satisfaction of the inquiring and decid- 
ing mind. That mind is entitled to have the very facts before it, and is not bound to 
accept as final the opinions even of an expert. Such opinions are evidence, but 
neither conclusive nor exclusive proof. Every person of judicial training well knows 
that the opinions of medical or other scientific or practical experts often differ and 
that they sometimes err in a body as if by some epidemic contagion. There is a judi- 
cial case involving scientific inquiry, in the printed record of which are the answers 
of twenty-three experts to the same question; twenty-two of them give decision one 
way, and a single one of them gives a reverse decision; and, in the conclusion, it 
was proved, beyond all controversy, that he alone was right and that all the others 
erred. In general, the opinions of an expert are of more or less weight and value, 
according to the person's constitution of mind and the degree of completeness of the 
collection of pertinent facts on which his mind acts." 

^ If an officer makes no objection to the proceedings or rulings of a board, he waives 
irregularities. (24 Ct. Cls., 265.) 



986 RETIBEMENT I B 2 b (l). 

in the United States Army which up to that time liad been subjected 
to it but three had relapsed. The officer refused tlie operation. 
Held that the disability was not permanent. Held further, that mani- 
festly the incapacity in consequence of which the law authorizes the 
retirement of an officer from active service is one that is thought to 
be permanent, or such that the removal of the disability which causes 
it is highly improbable, and that Congress can not possibly have 
intended to provide for the maintenance of an officer in the prime of 
life without receiving an equivalent in the way of service, unless he 
be suffering from an incurable disease or injury. C. 3831, Mar. 10, 
1898; 11223, Sept. 10, 1901; 22399, Nov. 22,' 1907; 24129, Dec. 3, 
1908. 

I B 2 b (1). Incapacity for service by reason of physical disability 
relates, of course, to a permanent, incurable disease, or injury of such 
a character as to absolutely disqualify the officer affected by it for 
duty on the active list. Deafness, defective vision, and incurable 
organic diseases are examples of such a disability. If, however, the 
disease be curable or of such a character as to yield to treatment 
then, even though a cure may require considerable time, the dis- 
ability is not permanent and the officer may be passed. And that 
question is for the board to determine. The test should be. Is the 
disease or mjury curable or incurable? If it be curable within a 
reasonable time, then the officer should be passed; if it be incurable 
within such reasonable time, the finding should be adverse. C. 11350, 
Oct. 7, 1901. 

I B 2 c. The phrases "in line of duty" and "incident of the ser- 
vice," while not synonymous, are not widely separate in meaning. 
Held that the efficient execution of a statute involving the one would 
give reasonable operation to the other. In other words, the several 
"incidents" which go to make up the daily or yearly routine of 
military service constitute, when added together, the "line of duty" 
which is contemplated in the pension laws, and no public interest will 
suffer if either understanding be applied by a retiring board in the 
determination of a particular case. C. 15600, Feb. 24, 1904; 19323, 
Feh. 24, 1906. 

I B 2 d. In a specific case there was no testimony before the board 
to show that the officer had contracted prior to his entry into the 
military service any of the diseases which the surgeons found to exist. 
There was evidence, however, that one of the diseases from which he 
suffered was incurred in the military service, and it was highly prob- 
able that another one, viz, incipient tuberculosis, w^as due to the same 
cause. Held that the board properly found that the officer's dis- 
ability was in line of duty.^ C. 15600, June 9, 1904- 

I B 2 8. Held that an officer should not be wholly retired on the 
findings of a retiring board unless the testimony as to the cause of the 
disability establishes the fact, beyond a reasonable doubt, that the 
incapacity is not the result of any incident of the service.^ C. 12992, 
Jidy 21, 1902. 

I B 3 a. The finding of a retiring board under section 1251 or 
section 1252, R. S., is in the nature of a recommendation, and till it is 

' See 7 Op. Atty. Gen., 154. 

'^ See 27 Op. Atty. Gen., 163, Jan. 22, 1909, in which it is held that sections 1245-1252, 
R. S., deal with the actual incapacity of an officer and not with its cause or causes, 
except in determining what shall be done in case the officer is found incapacitated. 



R.ET1BEMENT I B 3 b. 987 

"approved by the President" no retirement can be ordered there- 
upon.i ji 26, 104, Oct., 1867; C. 227^3, Feb. 12,1908. 

I B 3 b. If the President disapproves the findings of a retiring 
board the officer's status remains the same as it was before the ques- 
tion of referring his case to the retiring board was considered by the 
department. C. 22748, Feb. 12, 1908. 

I B 3 c. Wlien a retiring board finds an officer incapable of per- 
forming the duties of his office and also finds such incapacity not 
incident to the service, the President is vested witli discretion to 
retire the officer with three-fourths pay of his rank or wholly retire 
him with one year's pay and allowances. Held that this discretion is 
properly exercised in favor of the officer where the disability is incur- 
red through an untoward incident or without fault or with excusable 
fault. C. 22809, Feb. 24, 1908. Held further, that where the main 
contributing cause of such disability is inexcusable misconduct on the 
part of the officer the latter is subject to bein^ wholly retired. Held 
further, that where the main cause of the disability is misconduct 
extending over a long period of service and persisted in after repeated 
warnings the officer should be wholly retired. C. 26234, Apr. 24, 
1911. 

I B 3 d. The fuidmg of a retirmg board, approved by the Presi- 
dent, is conchisive as to the facts. The board finds the facts, and 
the President approves or disapproves the finding. There is here a 
judicial power vested in the two and not in the President acting 
singly, and when the power has been once fully exercised it is ex- 
hausted as to the case.^ P, 66, 426, Dec, 1892; 0. 6671, June, 1899; 
11223, Sept. 10, 1901; 22399, Nov. 22, 1907. 

I B 4 a. Held that if an officer be retired wlule detailed hi the 
Ordnance Department under the acts of February 2, 1901 (31 Stat. 
748), and June 25, 1906, and March 3, 1909 (35 Stat. 751), he should 
be retired with the additional rank held hi the Ordnance Department. 
0. 25677, Oct. 15 and Dec. 17, 1909. 

I B 4 b. Held that an officer can not be retired with mcreased rank 
after the action of a retiring board unless a vacancy occui-s before the 
President approves the findmg of the board.^ C. 9236, Nov. 7, 1900. 

I B 5 a. Held that there is no authority of law for the retirement 
of an officer of Philippine Scouts as such on account of disability 
mcurred. C. 14314, Mar. I4, 1903. 

I B 5 b. Held that an officer can not be placed on the retired list 
for disabifity incurred while a contract surgeon. O. 15892, Mar. 18, 
1904. 

1 B 6 a. The general theory upon which the Army has proceeded 
in the jiast is that examining boards and retiring boards should not 
be considered courts for the trial of moral delinquents; that where 
an officer is notoriously morally unfit for promotion, he is equally 
unfit to be an officer in whatever rank he may be servmg, and that 
disciplmary measures should be taken at the tune the evidence of 
the moral unfitness is available and the punishment of the morally 
unfit officer not postponed until such period as he shall have reached 

» See 21 Op. Atty. Gen., 385, and 27 id., 193. 

2 See 13 Op. Atty. Gen., 99 and 209; 19 id., 203, Dec. 3, 1888; U. S. v. Burchard 
(125 U. S., 179); Potts v. U. S. (125 U. S., 175). 

■^See G. O. No. 41, A. G. O., June 24, 1897. See also Par. 20 S. O., No. 173, W. D., 
1911. 



988 RETIREMENT I B 6 a (l). 

the time for his promotion. C. 23674, July 31, 1908; 2^036, Nov. S, 
1908. 

I B 6 a (1). An examining board found an officer not qualified 
morally for promotion. A court of inquiry which later investigated 
the case recommended that War Department orders be amended so 
as to provide specifically that all the proceeduigs during the examina- 
tion of an officer as to moral qualifications should be m the presence 
of himself and counsel ''if he desires counsel"; that he be furnished 
full mformation as to any allegations against Ms moral conduct, 
names of accusers, witnesses, and documentary evidence against him; 
that he be allowed to examine such witnesses and evidence and to 
testify and mtroduce evidence m liis own behaK; that if found mor- 
ally disqualified, he be furnished a full statement of the reasons, 
Held, that "the very fact that an adverse finding on moral qualifica- 
tion points very certamly to an officer's severance from the Arm)'- 
reveals, I think, that adequate provision for a fuU and complete 
hearing upon the moral issue should be conducted." C. 18566, 
June 22 1906. 

I B 6 i) (1). The act of October 1, 1890 (26 Stat. 562), contemplates 
that before an officer can be retired under it he shall be incapacitated 
for active service. The existence of that fact must be ascertained 
before the law can be apphed. If an officer is regularly found mca- 
pacitated physically by an examming board appointed under the act, 
but before being retired recover from his disabifity, he can not 
legally be retired. Where such recovery is alleged, a new examina- 
tion is not only proper but necessary.^ 
a. 1979, Jan., 1896; 18723, Oct. 13, 1905. 

I B 6 b (2). Under the act of October 1, 1890 (26 Stat. 562), the 
finding of the board of examination that the officer is incapacitated 
for duty is not fer se final, but must be reported for the action of the 
Secretary of War and passed upon by him.^ C. 15738, Jan. 7, 1904. 
Where the finding and report of the board have been approved but 
not yet executed by actual retirement, there may intervene contin- 
gencies which would supei-sede such proceeding, as the trial and 
dismissal of the officer by court-martial or the arising of new causes 
which might make proper, that the question of his disabifity be 
mquired into by a retiring board convened under section 1246, R. S. 
But unless some such new occasion and ground of disquahfication 
be presented, the action of the Secretary of War in approvmg the 
report remains final and exhaustive, and the officer is entitled to 
be retired under the act of 1890 and can not legally be ordered 
before such retiring board. P. 61, 148, 269, Aug. an^ Sept., 1893; 
C. 1979, Jan., 1896; 15738, Jan. 7, 1904; 18723, Oct. 13, 1905; 
23135, June 5, 1909. 

I B 6 c (1). An officer was suspended from promotion for one year, 
he having failed in his examination for promotion otherwise than 
physically in fine of duty.^ IleM that it was not proper to order him 

1 See 21 Op. Atty. Gen., 385, July 31, 1896. 

2 See 27 Op. Atty. Gen., 193, Feb. 19, 1909. 

^ See 25 Op. Atty. Gen. , 568, Mar. 24, 1906, in which it is held in a Marine Corps case 
that the year's suspension begins to run from the date of approval of the proceedings of 
the board, except when the vacancy has occurred previous to the approval, in which 
case the suspension runs from the date of vacancy. The "loss of date," i. e., "loss 
of numbers," begins to run from the date of vacancy. 



RETIREMENT I B 6 C (l) (fi). 989 

before a retiring board, as the act of October 1, 1890, provided that at 
the end of one year he should be reexamined to determine liis fitness 
for promotion. Held, further, that the order of suspension began to 
run at the date wlien he would have been promoted had he passed his 
exammation. . C. 2864-5, July 6, 1911. 

I B 6 c (1) {a). An officer was found professionally not quahfied 
for promotion and after one year's suspension was found physically 
not qualified for promotion, owing to disability in line of duty, under 
that portion of section 3 of the act of October 1, 1890 (26 Stat. 562), 
which reads: "If he should fail for any other reason he shall be sus- 
pended from promotion for one year, when he shall be reexamined, 
and in case of failure on such reexamination he shall be honorably dis- 
charged with one year's pay from the Army." Held that the physical 
examination was a proper part of the second exammation and that 
the finding of the board was legal and subject to approval. C. 22770, 
Mar. 4, 1908. 

I B 6 c (2). An officer was found mentally and professionally dis- 
q^ualified for advancement by a promotion board. Upon reexamina- 
tion at the end of one year he was found physically incapacitated for 
active service, due to disability not incurred in line of duty. Further 
examination was desisted from. Held that the final clause of the act 
in question bepame operative and that the officer should be honor- 
ably discharged with one year's pay." C. 22701, Feb. 4, 1908; 22809, 
Mar. 14, 1908. 

I B 6 c (3). Held that if an examining board called pursuant to 
the provisions of the act of October 1, 1890, should find an officer 
physically incapacitated, not in line of duty, he shall be suspended 
from promotion for one year, at the expiration of which time he shall 
be reexamined, and in the event of his failure to pass the phj^sical 
examination on account of disabihty not incurrecl in line of duty, 
no executive discretion is possible, as the law provides that he shall 
be honorably discharged with one 3"ear's pay and allowances. C. 
22809, Mar. 15, 1908; 28645, July 5, 1911. 

I B 6 c (4). The exauunation of officers of the Medical Depart- 
ment for promotion is controlled by the provisions of the act of Octo- 
ber 1, 1890, as replaced by the act of April 23, 1908 (35 Stat. 67), and 
subsequentlv modified in its application to medical officers of the 
grade of major by the act of March 3, 1909 (35 Stat. 737). ^ A major 
upon examination was found professionally suspended for a year and 
then found disquahfied for promotion — incapacity in line of duty. 
It was urged that he was entitled to be retired with the rank of lieu- 
tenant colonel before a vacancy should occur in the grade of heutenant 
colonel to which he would have been promoted if he had not been 
found incapacitated.^ Held that he could not be retired with the rank 
of lieutenant colonel imtil a vacancv should occur in that grade. 
a 23135. June 5, 1909. 

1 See 27 Op. Atty. Gen., 193, Feb. 19, 1909, in which it was held in the case of a 
major of the Medical Department, who was found incapacitated professionally for pro- 
motion and the finding approved by a board of review, that in view of apparent phys- 
ical incapacity in line of duty not discovered at original examination he may be 
reexamined by order of the Secretary of War. 

^ See Retirement, I B 4 b, which announces the rule to be followed on a question of 
retirement with increased rank, when a vacancy occurs before the approval of the 
proceedings, to which the officer normally would have been entitled to promotion to 
if no question had been raised as to his incapacity. 



990 RETIREMENT I B 6 d. 

I B 6 d. After an officer had successfully passed an examination 
for promotion, and before his promotion, he became incurably insane. 
Held that the approval of the favorable finding of the examining board 
did not bind the War Department to await his promotion. Held, 
further, that he might be given a second physical examination or 
might be ordered before a retiring board. C. 28852, Aug. IJf., 1911. 

I B 6 e (1). Held that the regulations prepared by the Presi- 
dent under legislative sanction in furtherance of the act of October 1 , 
1890, are sufficiently mandatory in character as to warrant the dis- 
approval of the proceedings of an examining board, whose members 
had failed to take the oath in the manner prescribed in the regulations 
as published in general orders of the department.^ Held further that 
the subsequent swearing of the members aid not operate to cure the 
defect as indicated in therecord. C. 20588, Oct. 25, 1906. 

I B 6 e (2). An examining board convened under the act of 
October 1, 1890, found an officer incapacitated for active service. 
The finding was approved. Held that as this officer was the senior 
in his grade, and a vacancy had occurred in the next grade, this oper- 
ated to transfer the officer from the active to the retired list and to 
place him in the status occupied by retired officers in the operation of 
sections 1255 and 1257, R. S. The change of status having been 
legally accornplished, it is beyond the power of the Executive to 
restore the officer to the active list. C. 23135, July 21, 1909. 

I B 6 f (1). Morphine was given to an officer to reUeve neu- 
ralgic pain. Later the officer was found by an examining board to 
be incapacitated for active service, the cause being chronic mor- 
phinism, not in line of duty. Held that the acquisition of the habit 
had been contributed to sufficiently by incidents of the service to 
warrant the President in exercising his discretion and placing the 
officer's name on the retired list. C. 22809, Apr. 16, 1908. 

I B 7 a. An examining board convened under the act of April 23, 
1908 (35 Stat. 67), as amended by the act of March 3, 1909 (35 Stat. 
737) found that a major of the Medical Corps was not quaUfied pro- 
fessionally for promotion. Held that the proceedings of the board 
should be referred to a board of review. If the latter board dis- 
approves the findings of the board of examination the officer will be 
entitled to his promotion, but if it approves those findings the course 
outlined by the statute should be followed, viz, suspension from pro- 
motion for a period of one year with a later examination at the end of 
that period, and in the event of a second similar failure to establish 
the necessary professional qualifications for advancement, retirement 
without promotion. C. 23135, Nov. 12, 1909. 

I C 1 a. A retired officer served with credit against the enemy 
while on leave of absence from the Military Academy preceding April 
9, 1865. Held that he served otherwise than as a cadet and was 
entitled to advancement in grade under the act of April 23, 1904 (33 
Stat. 264). C. 19271, Mar. 2, 1906, Fel. 19, and Dec. 4, 1907. 

I C 1 b. The act of April 23, 1904 (33 Stat. 264), provides that an 
officer who served with credit as an officer or enUsted man, otherwise 
than as a cadet, during the Civil War, may in the discretion of the 
President, by and with the advice and consent of the Senate, have his 

' An officer can not be retired on the findings of an examining board unless the Presi- 
dent approve such findings. The approval of the Secretary of War is not sufficient. 
See 21 Op. Atty. Gen., 385, July 31, 1896. 



RETIREMENT I C 1 C. 991 

name placed on the retired list of the Army, with rank and retired 
pay of one grade above that actually held by him at the date of retire- 
ment. Held that this did not apply to an officer who, during the 
Civil War, served as a midshipman at the Naval Academy; and did 
not participate during the Civil War against the enemy on land or sea, 
or in any respect otherwise than as a cadet. C. 1624-3, Mar. 2, 1911. 

Held further that advancement was warranted under the statute 
in the case of a midshipman who had otherwise than as a cadet 
actually participated in the operation of the Civil War, and had vol- 
untarily submitted to its hardships and dangers. C. 16271, May 16, 
1904; 16409, June 2, 1904, and Feh. 20, 1905; 22459, Dec. 24, 1907. 

I C 1 c. Held that an officer vn the retired list can not be advanced 
in grade under the provisions of the act of April 23, 1904 (33 Stat. 
264), because of service performed by him for the United States as a 
civil employee, no matter how nearly such service may be assimilated 
to that of a commissioned officer or an enlisted man, and even though 
he had taken the oath of allegiance to the United States.^ C. 16312, 
Sept. 29, 1904, and July 5, 1911; 16442, June 9, 1904; 1^441, June 11, 
1904; 19271 , Feh. 28, 1907. 

I C 1 d. Held that an officer can not be advanced in grade under 
the terms of the act of April 23, 1904 (33 Stat. 264), because of service 
during the Civil War as a contract surgeon. ^ C. 16672; jrom July 28, 
1904, to June 30, 1909. 

I C 1 e. A retired officer served as a mifitiaman not called into the 
service of the United States, with credit against the enemy preceding 
April 9, 1865. Held that as he did not serve in the Regular Army or 
volunteer forces he was not entitled to advancement in grade under 
the act of April 23, 1904 (33 Stat. 264). C. 19271, Feh. 3, 1908; 
16312 Jan. 9 1912. 

I C'2 a. After the act of April 23, 1904 (33 Stat. 264), had been, 
passed, the question arose as to whether or not those officers on the 
retired list, who had served otherwise than in the Volunteers, and who 
were otherwise qualified, but who had been convicted by courts- 
martial preceding April 9, 1865, were subject to ailvancement under 
that act; held, that their conviction by court-martial did not render 
their services not creditable and that they were, therefore, subject to 
advancement. G. 16313, May 7, 1904, and Mar. 24, 1909. 

I G 2 b. Held that an officer who has been retired under the act of 
October 1, 1890 (26 Stat. 562), can be advanced in grade on the retired 
list under the act of April 23, 1904 (33 Stat. 264) .^ 0. 28769, July 28, 
1911. 

I C2 c. The act of April 23, 1904 (33 Stat. 264), authorizes the 
President, in his discretion and with the consent of the Senate, to 
advance certain retired officers to a rank on the retired list one grade 
in advance of the rank actuall}^ held by them at the time of retirement. 
Held that this act does not operate in the case of a deceased officer.* 
a 16359, Dec. 27, 1911. 

' See 27 Op. Atty. Gen., 471, July 14, 1909, in which the expression "the regular or 
volunteer forces " mentioned in the act of Apr. 23, 1904, is defined as including "only 
those who by regular appointment in the usual way or by regular enlistment were 
members of the Regular or Volunteer Army." 

2 See 27 Op. Atty. Gen., 468, July 14, 1909. 

3 25 Op. Atty. Gen., 312; 27 id., 212 Feb. 23, 1909. 
* See 29 Op. Atty. Gen., 254, Sept. 22, 1911. 



992 EETIREMENT I D. 

I D. In the case of an officer found incapacitated for active duty, lield 
that he passes to the retired Hst upon the date when he is notified of 
the approved action of the retiring board in his case. C. 2387S, Sept. 
19, 1908, and A])r. 6, 1909. 

I E. Held that when an officer has once been retired in pursuance 
of the requirement of a statute authorizing such retirement, the order 
by which stwsh retirement was effected can not subsequently be 
revoked ^ or modified so as to make the retirement relate to another 
statute, even though the case was one to which more than one statute 
properly applied at the time when the retirement was accomplished. 
a I64I6, May 27, 1901^, Jan. 9, 1905, and Dec. 6, 1906. Nor can the 
action be reopened by a new Secretary of War. P. 4I , 358, June, 1890; 
42, 438, Sept., 1890; C. 16202, Apr. 20, 1904; I64I6, May 27, 1904, 
Jan. 9, 1905, and Dec. 6, 1906. 

I F. As section 34 of the act of February 2, 1901 (31 Stat. 757) 
does not repeal section 1212, R. S., held that a retired officer is not 
authorized to wear any uniform other than that of his actual rank 
or to be addressed in orders or official communications by any title 
other than that of his actual rank. 0. 9826, Feb, I4, 1901. 

I G. Retired officers (except when assigned to duty under section 
1259, R.S., or other statutes) do not exercise pubhc office.^ C. 1121, 
Mar. 14, 1895; 1077, Mar. 1, 1895; 8126, May 2, 1900. 

I G 2 a. Held that in the sense in which the word "officer" is used 
in section 5498, R. S., a retired officer may not assist a regular soldier 
m getting the evidence necessary to support his application for a 
pension.^ C. 20254, ^ug. 20, 1906; 19205, Feb. 12, 1906. 

1 G 2 b. An officer on the retired list, being as much a part of the 
Army as an officer on the active list,* would be subject to trial by 
general court martial independently of the provision, specifically so 
subjecting him, of section 1256, R. S.^ R. 33, 613, Dec, 1872. The 
retirement of an officer has no effect upon his status in respect to trial 
by court-martial, and he is equally liable to trial after as before 
retirement for an offense committed prior to his retirement, within the 
limitation prescribed in the one hundred and third article of war. C. 
25574, Sept. 14, 1909. 

I G 2 c. Held that as retired officers are a part of the Army, they are 
entitled to admission to the Government Hospital for the Insane upon 
a commitment issued by the Secretary of War ; and that the expenses 
of furnishing a mihtary escort constitutes a proper charge against 
the appropriation for transportation of the Army. C. 23922, Oct. 1, 
1908. 

' He can not be reinstated by order of the President. See 13 Op. Atty. Gen., 99 and 
209, June 14, 1869, and Feb. 5, 1870, respectively, and 19 id., 609. 

2 See Andrew Geddes v. U. S., 38 Ct. Cls., 429, Mar. 9, 1903. See People v. Duane, 
121 New York, 367. See Reed v. Sehon, 2 Cal. App. Kept., 55; 183 Pac. Reporter, 
771. Rehearing denied by Supreme Court of State, Dec. 22, 1905. 

3 See 16 Ct. Cls., 223; 18 Gt. Cls., 25; 29 Ct. Cls., 6; 31 Ct. Cls., 35; U. S. v. Tyler (105 
U. S., 244). 

* See 25 Op. Atty. Gen., 185, July 11, 1904, and 15 Ct. Cls., 185. See also United 
States V. Tyler, 105 U. S., 244, Oct., 1881; Wood v. U. S., 1Q7 U. S., 417; and VIII 
Comp. Dec, 443, Jan. 11, 1902. _ If a former officer by special act of Congress is ap- 
pointed major in the Army and immediately retired, he must take the oath of office. 
(19 Op. Atty. Gen., 283; U. S. v. Gillmore, 189 Fed. Rep.,^ 762.) 

* A retired officer, upon conviction, may be sentenced similarly to an officer on the 
active list, except that the punishments of suspension and loss of files or relative rank 
are not appropriate to the status of a retired officer. 



RETIREMENT I G 2 d. 993 

I G 2 d. It haying been reported that a retired officer against whom 
there were pending proceedings for ahmony by his wife was about to 
leave the United States to avoid the same, held, that it would be legal 
for the proper military authority to require the officer to remain within 
the junsdiction of the civil court in which he had been proceeded 
against ; the object being to protect the service from the disgrace which 
he would cast upon it by evading his obHgations in such a case. C. 
5946, Mar. 2, 1899. 

I G 2 e. Held that under the principle which exempts from taxation 
by a State the salary of an officer of the United States, the salary of 
a retired Army officer is equally exempt from such taxation with the 
salary of officers on the active list of the Army. C. 14582, Oct. 15, 
1907; 22521, Dec. 19, 1907. 

I G 2 f . Held that a retired officer holds office within the meaning 
of section 1223, R. S., which provides for the vacation of his office by 
an officer of the Army who accepts or holds any appointment in the 
diplomatic or consular service of the Government.^ C. 1^148, Dec. 
15, 1911. 

I G 3 a (1). A retired officer may hold any Federal office tq which 
he may be elected by the people or appointed by the President.^ C. 
2301, Mar. 8, 1906; 4051, Apr. 25, 1898; 16823, Sept. 13, 1904; 17613, 
Mar. 6, 1905. Held that he can not accept any position which is 
incompatible with his position as a retired officer. Held, further, 
that except as above he can not accept any office the salary of which 
is more than $2,500 per year otherwise than one under the direction 
of the Chief of Engineers m connection with river and harbor improve- 
ments.» C. 14399, Apr. 8, 1903; 19353, Mar. 14, 1906, and June 23, 
1909. Held, further, that he may accept the position of Member of 
Congress." C. 2301, Oct. 22, 1910. 

I G 3 a (2) (a). Retired Army officers are precluded from holding 
diplomatic and consular offices by section 1223, R. S. {R. 29, 1, June, 
1869), and this is the only existing prohibition .^ C. 2301, Mar. 8, 
1906; 14399, Apr. 8, 1903. There is no prohibition against their 
holding commissions in the mihtary forces other than the Regular 
Army, whether mihtia or volunteers, and whether appointed by the 
President or goveinore of States. C. 4051, Apr. 25, 1898. Section 2 
of the act of July 31, 1894 (28 Stat. 205), recognizes the legality o;f 
appointments of retired officers by the President, by and with the 
consent of the Senate, and such omce may be office in the volunteer 
force as well as any other branch of the Government, except the 

» See Badeau v. U. S., 30 U, S., 439. 

2 See 15 Op. Atty. Gen., 306; 19 id., 283; 22 id., 176 and 199; Meigs v. U. S. (19 Ct. 
Cls. 497); Converses. U. S. (62 U. S., 464);U. S. v. Brindle(110U. S., 688); U. S. v. Saun- 
ders (120 U. S., 126). 

' See sec. 7, act of June 2, 1896 (29 Stat. 235), and sec. 2, act of July 31, 1894 (28 
Stat. 205). See II Comp. Dec, 596, June 12, 1896. 

* See par. 231, Dig. 2d Comp. Dec, Vol. IV., Feb. 24, 1894. Held that the position 
of assistant general treasurer and inspector general for disabled volunteer soldiers is 
not an office of the United States within the meaning of the act of July 31, 1894 (28 
Stat. 205), and can be filled by a retired Army officer whose salary exceeds $2,500 per 
year. See also VIH Comp. Dec, 443, Jan. 11, 1902, and 38 Ct. Cls., 428. 

* See 15 Op. Atty. Gen., 306, June 11, 1877, and 407, Dec. 11, 1877. See 19 id. 
283 and 609, and 21 id., 510, Mar. 26, 1897, and Badeau v. U. S. (130 U. S., 439). 

That a resignation of a second office, the acceptance of which has operated to vacate 
an office previously held, will not work a reinvestiture of the original office, see In rt 
Corliss, 11 R. I., 643. 

93673°— 17 63 



994 RETIREMENT I G 3 a (2) {b) . 

Regular Army. And assuming that a retired oflicer holds an office 
within the meaning of this statute, governors of States may appoint 
them officers of Volunteers, provided their annual compensation as 
retired officers is less than $2,500, even if it should he held that they 
do not come within the description of "officers of the Regular Army 
as that term is used in the tenth, eleventh, and thirteenth sections of 
the act of April 22, 1898. C. 4051, Apr., 1898; 22500, Dec. 19, 1907. 

I G 3 a (2) (6), The act of Congress approved July 31, 1894 (28 
Stat. 205), provides that "no person who holds an office the salary or 
annual compensation attached to which amounts to the sum of two 
thousand five hundred dollars shall be appointed to, or hold any 
other office to which compensation is attached unless specially hereto- 
fore or hereafter specially authorized thereto by law; but this shall 
not apply to retired officei-s of the Army or Navy whenever they may 
be elected to public office, or whenever the President shall appoint 
them to office by and with the advice and consent of the Senate." 
This legislation seems to assume that a retired officer holds a public 
office. But that a retired officer does not hold an office has not 
always, nor even generally, been conceded.' But irrespective of this 
consideration the legislation does not apply to those whose salaries 
are less than $2,500. C. 1121, Mar., 1895; 2301, May, 1896; 8126, 
May, 1900. 

I G 3 a (3). Held that, under the opinion of the Attorney General of 
June 11, 1877, distinguishing between the receiving of compensation 
for extra services ^ and of compensation for two distinct (and not in- 
compatible) offices, a retired officer could legally hold the office of a 
clerk in the^ Quartermaster Department, and receive the pay of such 
office, while at the same time retaining his office in the Army and 
receiving the pay of the same.^ R. 43, 197 , Feh., 1880. 

1 In people i'. Duane, 121 N. Y., 367, the Court of Appeals of N. Y. held, in a forcible 
and elaborate judgment, that a retired officer did not hold an office within the meaning 
of a statute of that State authorizing the appointment of aqueduct commissioners 
and providing that "they and their successors shall hold no other Federal, State, or 
municipal office except the offices of notary public and commissioner of deeds." 
The question as to whether retired officers hold offices was treated as doubtful by the 
Attorney General in an opinion as to whether Gen. Sickles, a Member of Congress, 
could receive his pay as a retired officer, 20 Op., 686; but in this matter Second 
Comptroller Mansur held in an elaborate decision dated Feb. 24, 1894, that "the 
place and rank on the retired list held by an officer of the Army is a military office 
under the United States." The following cases treat retired officers as holding offices: 
Tyler v. U. S., 16 Ct. Cls., 223; U. S. v. Tyler, 105 U. S., 244; Wood v. U. S., 15 Ct. Cls., 
151, and 107 U. S., 414; Franklin v. U. S., 29 Ct. Cls., 6; Badeau v. U. S., 130 U. S., 
439; State v. De Gress, 53 Texas, 387; case of Maj. Smith, 19 Op. Atty. Gen., 283. 
See also, II Comp. Dec, 7. Decision of Comptroller in the case of Capt. Geddes, VII 
Comp. Dec. (dated Feb. 6, 1901). In the cases of Tyler and Winthrop supra, the 
Court of Claims held that retired officers of the Army are officers within the meaning of 
section 5498, R. S., which prohibits officers of the United States from acting as agents 
or attorneys for prosecuting claims against the Government. 

^ A retired officer may be employed by the War Department to supervise work 
where he could not have been assigned to that duty. 25 Ct. Cls., 296, also 38 id., 39. 

A retired officer is not prohibited by law from holding office in an executive depart- 
ment, nor from receiving the salary thereof in addition to his retired pay. Collins v. 
U. S., 15 Ct. Cls., 22; Meigs v. U. S., 19 id., 497; Yates v. U. S., 25 id. 296; 19 Op. 
Atty. Gen., 283. If the retired officer receives |2,500 or more, the holding of any other 
office is forbidden by sec. 2 of the act of July 31, 1894 (28 Stat. 205), except as specified 
in that act. See also sec. 7, act of July 3, 1896 (29 Stat. 235), as to employment of 
retired officers on rivers and harbors. 

3 15 Op. Atty. Gen. 306. And see id. 608, and 16 id. 7, based like the opinion 
referred to in the text, mainly upon the ruling of the United States Supreme Court 
in Converse v. United States, 21 Howard, 463. 



RETIREMENT I G 3 b. 995 

I G 3 b. Held that a retired officer may accept any State office in ttie 
absence of a State statute to tiie contraiy. C. 3327, June 30, 1897; 

B. 31, 136, Jan., 1871; 41, 662, Aug., 1879; 42, 165, Feb., 1879; 

C. 22500, Dec. 19, 1907. Tfius, he may accept tiie position of mayor 
of a city. C. 2301, Nov. 23, 1905, July 22, 1908, and Mar. 13, 1909; ^ 
4051, Ai^r., 1898; 14063, Jan. 27, 1903. Or he may accept the posi- 
tion as member of the State legislature.^ C. 2301, July 22, 1908, 
and July 27, 1910. Held, however, that if he is on duty with the 
militia of a State, it would be incompatible with the spirit of his 
duty for him to accept the position of member of a State legislature. 
C. 2301, Dec. 14, 1910. 

Held that he may accept the position of adjutant general of a vState, 
or colonel of a regiment in the National Guard of a State. 0. 17631, 
Mar. 6, 1905; 17764, Mar. 24, 1905. Or while on college duty a 
commission in the National Guard. C. 22170, Oct. 5, 1907. Held 
also that he may hold the position of prison physician. C. 2301, 
Sept. 13, 1911. 

I H 1. Held that there is no objection to a retired officer acting as 
counsel for an officer before a court-martial or retiring board, and to 
receiving such fees or other compensation as may be agreed upon by 
his client and himself . C. 26975, July 5, 1910. ^ _ • 

I I. There is no provision of law or regulation authorizing the 
payment of the burial expenses of a retired officer. Army regula- 
tion 85 (87 of 1910) is limited, in the cases of officers dying at a 
military post, to those who die ''when on duty" there, and therefore 
does not include retired ofRcei"s who may die at a militaiy post. 
C. 3662, Nov., 1897; 22330, Nov. 8, 1907. 

I K 1. The act of April 21, 1904 (33 Stat. 225), authorizes the 
assignment of a retired officer "to active duty" in certain employ- 
ments which are mentioned in the act; held, that the status of "active 
duty" which is provided for in the act, differs from the status of an 
officer in "active service," who has never been placed on the retired 
list. - 

In military phraseolog}^, the term active service must be taken 
as indicating that an officer on such service has not been retired, 
and it foUows that an officer on the retired list may be detailed to 
active duty but is not thereby removed from the retired list, or 
restored to active service. The incidents of the employment of a 
retired officer in the operation of competent orders may bear a close 
resemblance to active service, but differs from it in the fact that 
whatever may be the extent and character of such employment it 
is not and, in the absence of furthering legislation, it can not be 
regarded as restoring the officer to the active list. 

The general status therefore of retired officers who under competent 
order are placed upon active duty is one involving pay and allow- 
ances given to them under the various statutes applying to their 
cases. The status of active duty in all such cases is but temporary, 
and is maintained only so long as the detail is continued. The 
status of an officer on active service is continuous, and is maintained 
by him until he either leaves the service entirely or is placed upon 

* See Reed v. Sehon, 2d Cal. App. Reports, 55 (83 Pac. Rep., 77). Rehearing 
denied by the supreme court of California, Dec. 22, 1905. See, also, 15 Op. Atty. 
Gen. , 306, June 11, 1877. See the act of Mar. 3, 1883 (22 Stat. 567), which authorizes 
retired Army officers to hold elective or appointive office in a Territory. 



996 RETIREMENT I K 2 a. 

the retired list. While a duty status is given to the various retired 
oflicers for certain definite purposes, nowhere do we find the sug- 
gestion that such active duty removes them from the retired list 
and places them once more upon the active list of the Army. The 
difference between the retired list and the active list is one which 
does not depend on the question of pay which an officer may be 
drawing under any given detaU. C. 21^306, Feb. 25, 1909; 23623, 
Oct. 11, 1909; 23760, Aug. 22, 1908. 

I K 2 a. Held that the phrase "staff duties not involving service 
with troops" which occurs m the act of April 23, 1904 (33 Stat. 225), 
contemplates only staff duties in connection with the existing military 
establishment. Held further that the above law can not be held 
to authorize the detail of retired officers on f uU pay_ to the duty of 
familiarizing themselves with the facts in pending litigation in order 
that they may appear as witnesses. O. 23916, Jan. 12, 1911. 

I K 2 b. The act of April 23, 1904 (33 Stat. 264), authorizing the 
detail of retired officers ' with their consent to staff duties not involv- 
ing service with troops," should be read in connection with the 
several enactments of Congress which fix the commissioned strength 
and prescribe the duties of the several staff departments. Held, 
that, except in case of unusual emergency, an officer of the retired 
list can not properly be assigned to staff duty which, under the law, 
officers of the staff departments are expected to perform. C. 22635, 
Jan. 18, 1908. Held, also, that the views above expressed would not 
apply in strictness to the assignment of a retired officer to an employ- 
ment in a staff department the duties of which are performed — not by 
a commissioned officer, but by a civilian; such would be the case 
when a retired officer is employed as an inspector of articles supplied 
under contract. Such employment, however, would be subject to 
the objection that the rank of the retired officer would be revived by 
his assignment to active duty, and considerable friction and incon- 
venience would doubtless arise were he assigned to duty under a 
i'unior in rank. For the reason above stated such assignments are 
>elieved to be inexpedient and are not recommended. C. 16311, 
Jan. 2, 1906; 22635, Jan. 18, 1908. 

I K 2 c. Held that the Hmitation in the act of April 23, 1904, 
expressed by the words "service with troops" as contained in the 
clause "staff duties not involving service with troops" is fully accom- 
pUshed when details of retired officers to staff duties are so limited 
that they are called upon to exercise, in representation of superior 
authority, functions of command over organizations of troops m the 
Regular Army. Held further that a retired officer may be assigned, 
witn his consent, to the duty of Hbrarian at the service schools {C. 
20030, July 11, 1906), or to duty in charge of construction work in 
the Quartermaster's Department. C. 29052, Oct. 3, 1911. 

I K 2 d. Held that a retired officer on active duty, without troops, 
at Fort Bayard, N. Mex., should be furnished with quarters in kind, 
after the staff of the hospital has been provided for ; and if no quarters 
remain, authority to hire the necessary quarters should be furnished. 
C. 25890, Dec. 6, 1909. 

I K 2 8. The act of March 3, 1909 (35 Stat. 836), authorized the 
Secretary of War to appoint a court of inquiry consisting of five 
officers of the United States Army to hear and report upon all charges 
and testimony relating to the shooting affray which took place at 



RETIREMENT I K 2 f . 997 

Brownsville, Tex., on the night of August 13 and 14, 1906. Held that 
retired officers were eligible for such duty.* C. 20754-A, May 25, 
1909,^ 

I K 2 f. Held that under existing law retired officers may, with 
their consent, be appointed members of general courts-martial, and 
that courts composed entirely of retired officers may be convened for 
the trial of officers and enhsted men. C. 28289, May 8, 1911. 

I K. 3 a. A retired officer was detailed on college duty under the 

Erovisions of section 1225 R. S., as amended by the act of Novem- 
er 3, 1893 ^ (28 Stat. 7). Held that he should be regarded as on 
active dutj' within the meaning of the act of March 2, 1905 (33 Stat. 
831), and entitled to his full retired pay, unless he is a colonel or 
heutenant colonel, in which case he will receive the full pay and 
allowances of a major on the active Hst. C. 18199, June 26, 1905. 

I K 3 b. As section 1225 R. S. is permissive in character in its 
operation in the Territories, Jield that an officer on the active or retired 
list, may be assigned to duty at a college or university in the Philip- 
pine Islands which has a capacity to educate at the same time not less 
than 150 male students. C. 16485, June 21, WOj. 

I K 3 0. Held that section 1225 R. S, contains nothing that is 
locally inapphcable to Porto Rico, but that, on the contrary, its apph- 
cation to that island is of importance to the United States to further 
its military poUcy in respect of the dissemination of military instruc- 
tion, and that under said section a retired officer of the Army may 
be detailed to an institution of learning in Porto Rico. C. 27865, 
Feb. 15, 1911. 

I K 4. The act of May 11, 1908 (35 Stat. 108), as amended, 
authorizes six months' pay to the widow of an officer or enhsted man 
who dies on the "active list"; held that a retired officer assigned to 
"active duty," in the operation of the act of April 21, 1904 (33 Stat. 
225), is not an officer of the "active list" within the meaning of the 
act of May 11, 1908. C. 23760, Aug. 22, 1908. 

I K 5. Held that a quartermaster may not issue or sell to retired 
officers, even if thev are on active duty, furniture which he has pur- 
chased under the terms of the act of May 11, 1908 (35 Stat. 119). 
C. 23623, Oct. 11, 1909. 

I L 1 . Officers on the retired Ust are entitled to longevity pay ' 
which had accrued previous to retirement. Held that tliis Umitation 
does not hold as to those who are retired on account of wounds 
received in battle." C. 15878, Fel. 9, 190^.^ 

I M 1. Wliere an officer did not make the journey to his home under 
the order retiring liim until one year and a half after his retirement, 
his clahn for mileage was disapproved by the Secretary of War June 5, 
1890, "for the reason that the journey * * * to the place he now 

* For detail of court, see Special Orders, No. 79, War Department, 1909. For report 
of coxirt, see Senate Document No. 701 (Gist Cong., 3d sess.). All of the members were 
retired officers, but the recorder was on the active list. 

2 See 20 Op. Atty. Gen., 687. 

^See 16 Ct. Cls., 223. That an officer placed upon the retired list can not, by an 
Executive order, be allowed any pay greater than or additional to that authorized by 
statute to be paid to retired officers. See 15 Op. Atty. Gen. , 442. The rank and pay of 
retired officers are matters within the control of Congress. Wood v. U. S., 15 Ct. Cls., 
151, and 107 U. S., 414. See also 105 U. S., 244. 

* Also no time can be allowed for time served on active duty after retirement. XV 
Comp. Dec, 235, Oct. 13, 1908. See act of Mar. 2, 1903 (32 Stat. 932). 



998 EETIREMENT I M 2. 

calls his home at so long a period after the date of his retirement 
can not be considered as falling witliin the rule of giving an officer 
mileage when retired, to enable him to resume his residence at his 
home.i * * *.'; C. 2978, Mar., 1897. 

I M 2, Held that a retired officer is entitled to the mileage and 
witness fees of a civilian witness when subpoenaed as a witness before 
a general court-martial. ^ C. 19611, Apr. 28, 1906. 

INI. Held that an officer may be wholly retired ^ for being "men- 
tally incapacitated for performing the duties of an officer of the Army 
and that such incapacitation does not result from long and faithful 
service, or any cause incident to the service, but from natural causes 
which existed prior to his entry into the military service." 0. 10820, 
July 9, 1901. 

I N 2. The provision of section 1253, U.S., that a a officer shall not 
"be wholly retired from the service without a full and fair hearing 
before an Army retiring board, if, upon due summons he demands it," 
may be said to entitle an officer subject to be thus retired, to appear 
before the board (with counsel if desired), and to introduce testimony 
of liis own, and cross-examine the witnesses examined by the board, 
including the medical members of the board who may have taken part 
ill the medical examination and have stated or reported to the board 
the result of the same.^ R. 23, 626, Aug., 1867; 31, 603, Aug., 
1871. If the officer does not elect to appear before the board when 
summoned, he waives the right to a hearing, and can not properly 

' In this case the Comptroller of the Treasury later held (vol. 4, p. 175) that an officer 
''retired and ordered to repair to his home should promptly obey the order and should 
be deemed to have selected the place to which he repairs within a reasonable time as 
his home." 

2 See X Comp. Dec, 51, July 15, 1903. 

^ It will be instructive to note some of the causes for which officers have been wholly 
retired , as follows: For ' ' clironic alcoholism " ( C 282^4 and 28288, May 8,1911); for being 
''utterly unfit for the performance of the duties required of him by law and regulations 
under his present commission, and such unfitness is not the consequence of his military 
service. His mental condition is abnormal, and his unfitness for duty is clearly due 
to such mental condition, l)ut he is not insane, and the abnormal condition which the 
board has discovered to exist antedates his admission to the medical staff of the Army " 
( C. 10820, July 6, 1910) ; for "mental inaptitude which existed before entering into the 
service and which has been found to be progressive and wMch has been aggravated 
and intensified by the excessive use of alcoholic stimulants while in the service" (C. 
26234, Apr. 24, 1911); for "age and corpulency, which condition existed prior to his 
entry into the regular establishment" {C. 28224, Apr. 27, 1911); for "constitutionally 
weak condition of the heart, lungs, and stomach" and for ' ' valvular weakness of the heart 




) proper 

tracted in line of duty"; for "insanity not incident to the service"; for "improper use 
of stimulants and anesthetics"; for "general anemia and epilepsy not incident to the 
service"; for "mental alienation of the form known as melancholia of persecution 
which existed prior to entry into sei-vice"; for "neurasthenia not an incident of the 
service "; for " cardiac dilatation and fatty degeneration existing prior to entry into 
service"; for "disability resulting from abuse of narcotics and stimulants"; for "dis- 
ability brought about by the excessive use of morphine and cocaine " ; for " disability 
resulting from immoral conduct"; and for "mental incapacity existing prior to his 
entry into service." C. 28224, Apr. 27, 1911. 

^ The provisions of sees. 1245 and 1252, R. S., authorizing the President to ^'wholly 
retire" an officer, are not inconsistent with those of sec. 1229 and the ninety-ninth 
arricle of war, prohibiting the dismissal of officers by executive order in time of peace. 
Sections of the same statute, as these are (see Revised Statutes, post), must all be 
given equal force and effect, unless repugnant and irreconcilable. 



•RETIREMENT I N 3. 999 

take exception to a conclusion arrived at in his absence.* R. 20, 621, 
May, 1866. 

I N 3. The provisions of section 1275, R. S., that an officer wholly 
retired ^ shall receive, upon retirement, one year's pay and allowances, 
entitles such an officer to receive a sum equal to the total of one year's 
pay and all the pecuniary allowances of an officer of his rank. R. 29, 
360, Oct., 1869. And Jield, that the fact that an officer, at the time 
of being wholly retired, was under a sentence of suspension from rank 
and pay, did not affect liis right to receive such full sum upon the 
retirement. R. 29, 6Jf.5, Jan., 1870. But officers wholly retired, 
unlike officers otherwise retired, are not entitled upon retirement to 
the authorized change of station allowance of baggage, etc., to their 
homes. C. 2071, Feb., 1898. 

I N 4. An officer when wholly retired, becomes a civifian and no 
authorit}^ exists for shipping his goods to his home at public expense. 
C. 2071, Oct. 5,1908. 

I O. Held, that an officer upon retu'ement may designate a city in 
Porto Rico as his home, and thereby become entitled to transporta 
tion to that place for his baggage. C. 23915, Oct. 2, 1908. Held 
further, that he is not entitled to a transportation request for such 
sea travel for himself, but that he must pay for the transportation by 
sea, subject to subsequent reimbursement by the Pay Department 
for the expenses actually incurred by him in the performance of the 
journey. C. 23915, Nov. 3, 1908. 

II A 1 a. A soldier who had been previously discharged for dis- 
ability reenlisted by concealing the fact of such discharge, and after 
having served 30 years, by successive reenlistments, applied for 
retirement. Held, that he was entitled to be retired on such service, 
since the only requisite in the act of September 30, 1890 (26 Stats. 
504), is that the soldier shall have rendered and the Government 
received fi'om liim 30 years' service as an enlisted man. C. 2022, 
Jan. 29, 1896. 

II A 1 b. All enlisted man was held to serve in an enfistment 
which was fraudulent, due to his concealing the fact at enlistment 
that he had been previously discharged wdtliout honor. Held, that 
in view of the fact that the Government continued him in service 
without trial, his service previous to his discharge without honor, as 
well as liis service subsequent thereto counted toward retirement. 
C. 22855, Mar. 11,1908. 

II A 1 c. An enlisted man was held to service in an enlistment 
which was fraudulent, due to his concealing the fact at enlistment 
that he had been dishonorably discharged. Held, that the service 
subsequent to the dishonorable discharge was valid for retirement, 
but the service previous to the dishonorable discharge was not. 
C. 27073, July 22, 1910; 27507, Nov. 19, 1910. 

II A 1 d. Held, that time actually served in a fraudulent enlist- 
ment without a discharge from a previous enlistment counts for 

^ It is held by the Attorney General (16 Op. 20) that where an officer of the Navy 
had been retired without having had, through no fault of his own, the full and fair 
hearing before the board to which he was entitled by sec. 1455, R. S., and the vacancy 
on the active list occasioned by his retirement had not been filled, the President 
would be authorized to revoke the order of the retirement so tliat the officer might 
have the proper hearing, before final action in his case. 

2 After being wholly retired an officer becomes a private citizen (19 Ct. Cls., 338). 



1000 RETIREMENT II A 2. 

retirement.^ C. 355, Sept., 1894; ^022, Jan., 1896; 3777. Oct. 21, 
1899; 7108, Oct., 1899. 

II A 2. A marine, after serving nine years and six months in the 
Marine Corps, deserted therefrom in 1866, and subsequently while 
thus in desertion served about 16 years in the Army. Held that if 
his service in the Marine Corps during the Civil War was "active 
service" within the meaning of the act of February 14, 1885 (23 Stat. 
305), as amended by the act of September 30, 1890 (26 Stat. 504), 
he would be eligible under said acts for retirement. C. 6693, July 3, 
1899. 

II A 3. Held that service as a commissioned officer of volunteers or 
in the Philippine Scouts during the War with Spain in 1898 counts 
toward the retirement of an enlisted man.^ C. 12913, July 25, 1910; 
8696, Aug., 1900; IOO4I, Mar. 25, 1901; 29270, Nov. 28, 1911. 

II A 3 a. Held that there is no law which authorizes service as an 
officer in the Philippine Constabulary to be credited toward the 
retirement of an enlisted man in the United States Army. C. 23327, 
Aug. 11, 1909. 

II A 4 a. Held that the term "war service" in the proviso of the 
act of September 30, 1890 (26 Stat. 504), relating to the computing 
of the period of such service with a view to the retirement of enlisted 
men, included service as a commissioned officer equally with service 
as an enlisted man. P. U, 209, Dec, 1890; C. 8473, June 25, 1900; 
10041, Mar. 25, 1901. But see C. 22403, Nov. 23, 1907. 

II A 4 b. The act of April 23, 1904 (33 Stat. 264), provides that 
"hereafter, in computmg length of service for retirement, credit 
shall be given soldiers for double the time of their actual service in 
China, Cuba, the Philippine islands, the Island of Guam, Alaska, and 
Panama; but double credit shall not be given for service hereafter 
rendered in Porto Rico or the Territory of Hawaii. Held that "here- 
after," as used in the clause above cited, fixes the date when the 
statute becomes operative, viz, April 23, 1904. Held, further, that 
double time should be credited for service rendered in Chma, Cuba, 
the Philippine Islands, Guam, Alaska, and Panama. Held, further, 
that service rendered in Porto Rico prior to April 23, 1904, should be 
counted double; subsequent to that date it should be counted at its 
actual duration. C. 16443, June 11, 1904. 

II A 4 b (1). In computing the time of service required for retire- 
ment of an enlisted man, held that the words "actual service, " which 
occur in the act of May 26, 1900 (31 Stat. 21 1), and in the act of April 
23, 1904 (33 Stat. 264), apply to a soldier who occupies a status of 
present with his command, either for duty, sick, or in confinement. 
Held, further, that the status so created is different from that occupied 
by a soldier who is absent on furlough, during which no actual service 
is being rendered. Held, further, that if a soldier while serving 
beyond the sea goes on furlough, such period spent on furlough will 
not be counted as double time toward retirement. C. 26995, July 
11 and 29, 1910; 8529, June 29, 1900; 14187, Feb. 25, 1903. Held, 
further, that the date when the soldier crosses the boundary of th-e 
territorial possession is the date when the actual service begins. 
C. 26995, July 11, 1910. 

1 Comptroller holds otherwise in MSS. decision dated Sept. 28, 1900, filed with 
C. 3777. 
2 See acts of Mar. 2, 1903 (32 Stat. 934), and June 12, 1906 (34 Stat. 247). 



RETIBEMENT II A 4 b (2). 1001 

II A 4 b (2). Held that an enlisted man is entitled under the act of 
May 26, 1900 (31 Stat. 209), to have service on an Inter-Island Trans- 
port in the Philippine Islands count double for the purpose of retire- 
ment, a 15311, Oct. 2, 1903. 

II A 4 c. Under the act of May 26, 1900 (31 Stat. 211), as amended 
by act of Aprd 23, 1904 (33 Stat. 264), service in the Philippine 
Islands, etc., counts double for purposes of retirement. Under the 
act of February 2, 1901 (31 Stat. 757), authority was granted for the 
enlistment of native troops. Held that a construction of these 
statutes which would permit service by natives of the Philippine 
Islands, in the Philippine Islands, to count double for purposes of 
retirement is not permissible.^ C. 29353, Jan. 5, 1912. 

II B 1 . Held that retired enlisted men are not formally discharged 
from the service at the date of their retirement.^ They are, in fact, 
pensioners; their retired pay being in consideration of past services. 
by statute they continue to be subject to the Articles oi War and to 
nmitary orders, and to such disciphne as is consistent with their 
status; but there is no authority for their employment on mihtary 
duty. C. 24788, Apr. 17, 1909; 8445, June 22, 1900; 10843, July 12, 
1901; 14336, May 6, 1903. 

II B 2. On the question of whether a retired post quartermaster 
sergeant who sohcited by means of a printed circular the claims of 
enlisted men to the 20 per cent increase pay for foreign service should 
be prosecuted under section 5498, R. S., lield that the sergeant was 
not prohibited by the statute from assisting in the prosecution of 
claims mentioned in liis circular, nor was it improper for any such 
claimants to turn their claims over to him. C. 18202, June 29, 1905. 

II B 3. Held that military control over liim in so far as such ad- 
ministrative or disciplinary control is necessary' is vested in the com- 
mandmg general of the department in which the retired enlisted man 
resides. C. I64OI, June 1, 1904; 17182, Nov. 28, 1904. 

II B 3 a. Held that a retired enlisted man may be tried for not 
paymg his debts. C. 2716, Nov. 2, 1896. 

II B 3 b. Held that a retired soldier may be furnished subsistence 
in kind instead of the commutation allowances during the time he 
may be in confinement at a mihtary post under military charges, and- 
either subsistence in kind or full commutation while en route under 
guard to or from the post. C. 3234, June, 1897. 

II B 4 a. Held that a retired enhsted man must secure the permis- 
sion of the War Department to reside abroad. C. 28028, Mar. 28, 
1911. 

' See Smythe v. Fiske, 23 Wall., 374, in which it is held that "a thing may be within 
the letter of a statute and not within its meaning." 

See also People v. Utica Ins. Co., 15 Johns, 358, in which it is held that "a thing 
which is within the intention of the makers of a statute is as much within the statute 
as if it were within the letter, and a thing that is within the letter of the statute is not 
within the statute unless it be within the intention of the makers." 

See also United States v. Kirby, 7 Wall., 482, in which it is held that "all laws 
should receive a sensible construction. General terms should be so limited in their 
application as not to lead to injustice, oppression, or an absurd consequence. It will 
always, therefore, be presumed that the legislature intended exceptions to its lan- 
guage which would avoid results of this character. The reason of the law in such 
cases should prevail over its letter." The language of this latter citation is cited in 
Hawaii v. Mankichi, 190 U. S., 197, where other authorities to the same effect are also 
cited. 

2 See G. O. No. 43. A. G. O., 1889, and Digest 2d Comp. Dec, Vol. Ill, par. 874, 
Aug. 9, 1888. 



1002 BETIREMENT II B 4 b. 

II B 4 b. Held, that a retired enlisted man may not, without a 
revocable license from the Secretary of War, occupy quarters on a 
miUtary reservation unless he is employed on the reservation. C. 
304, Sept. 13, 1894; 1330, June 5, 1895; 1968, Jan. 15, 1896; 2699, 
Oct. 26, 1896. 

II B 5. Held, that, as a retired soldier is a part of the Army, he is 
entitled to admission to the Government Hospital for the Insane. 
Held, further, that the cost of transporting him and attendants 
should not be charged against his pay. C. 18746, Oct. 18, 1905; 
25245, July 8, 1909. 

II B 6. A retired soldier may not be admitted to the Soldiers' 
Home. C. 11790, Jan. 15, 1902; 18722, Oct. 18, 1905. 

II B 7. An enlisted man, three years after his retirement, applied 
for transportation to his home, under the provisions of General Order 
43, Adjutant General's ofRce, 1889, Held that by not availing him- 
self within a reasonable time after retirement of his right to transporta- 
tion and subsistence he had waived his right to the same.* C. 2978, 
Mar. 2, 1897. 

II C 1. Held, that the pay of a retired soldier may be stopped to 
make good an overpayment. C 26161, Apr. 3, 1911. 

II C 2. As the post exchange is a Government instrumentality, 
lield that the pay of a retired enlisted man may be stopped to reim- 
burse the post exchange funds in payment of a debt. Held, further, 
that it may be stopped to reimburse company, hospital, bakery, post, 
and regimental funds. C. 3171, June 7, 1897. 

II D 1. There is no statute of the United States or regulation of 
the War Department which prevents a retired enlisted man of the 
Army from accepting an office or employment under either the 
United States or a State. Held, therefore, that no law or regulation 
prevents a retired enlisted man from organizing and drilling a militia 
company. C. 3638, Nov. 9, 1897. 

II D 2. Held, that a retired enlisted man may accept a commission 
as an officer of Philippine Scouts and serve as such. C. 10843, July 
12, 1901. 

II D 3. Held, that, in the absence of a State statute disqualifying 
him, a retired enlisted man may hold the office of city constable. 
C. 1077, Mar. 1, 1895; 3638, Nov. 8, 1897; 14911, July 6, 1903. 

II D 4. The language "who have been honorably mustered out or 
discharged from the service of the United States" used in section 
4847 R. S., in describing those persons who may be appointed 
superintendents of national cemeteries, held not to debar retired 
enlisted men from such appointments. C. 24788, Apr. 16, 1909. 

II E 1 . Held, in the absence of any legislation to the contrary, 
that retired enlisted men, like retired officers,^ might legally be 
employed, in any department of the Government, as clerks, mes- 
sengers, watchmen, etc., and received pay for such employment, 
while at the same time retaining their positions on the retired list 
and receiving retired pay.^ R. 56, 144, 4^^, ^'^V ^^^ Sept., 1888; 
P. 24, 240, May 5, 1888; C. 10843, July 12, 1901; I49II, July 6, 1903. 

» VComp. Dec, 175. 

2l5 0p. Atty. Gen.,306. 

3 See Digest 2d Comp. Dec, Vol. IV, par. 73, Sept. 28, 1894. 



RETIREMENT — RETIRING BOARD. 1003 

II E 2 a. Held that the law does not prohibit a retired soldier 
(musician) from following his profession in civil life because at one 
time he formed part of a military band. C. 2Ji.l79, Dec. 9, 1908. 

II E 2 b. Held that a retired enlisted man may accept employment 
as an instructor of high-school boys ih military tactics. C. 3638, 
Jan. 9, 1909. 

II E 2 c. Held that a retired enhsteil man may accept a position 
as interpreter to the Austro-Hungarian commissioner at the St. Louis 
Exposition. C. 16024, Mar. 15, 1904. 

II F 1 a. Held that the remains of a deceased retired soldier may 
not be shipped on a Government bill of lading. Held, further, that 
the cost of transportation in such a case is not a proper charge against 
the United States. C. 13773, Dec. 8, 1902. 

II F 2. Held, that the enhstment of a retired soldier would operate 
to terminate his status of retirement. C. 14511, Apr. 24, 1903. 

II F 3. An enlisted man on the retired list is subject to trial by 
court-martial {C. 21089, Feb. 11, 1907) and to dishonorable discharge 
by sentence, if such be adjudged. But the existing law, in entitling 
him to be retired if he complies mth its conditions, evidently con- 
templates that he shall remain a pensioner on the bounty of the 
Government during the remainder of his life, if not forfeiting his 
claim by serious misconduct. So, lield, that retired enlisted men 
could not legally be discharged by Executive order under the fourth 
Article of War, which contemplates soldiers on the active list only. 
B, 55, 305, Jan., 1888; C. 18202, June 29, 1905. 

II G. An enlisted man with an exceedingly good record of service 
was retired as a private. He requested that the order be revoked, so 
that he coidd be retired as a noncommissioned officer. Held, that 
when he was retired, the power of the President was exhausted as 
to his case, and thsbi the order retiring him could not be revoked.' 
O. 20446, Sept. 27, 1906. 

III. Forage masters and wagon masters employed by the Quarter- 
master General under section 1137, R. S., are not "enlisted," and 
tlierefore not entitled to be retired under existing law — act of Sep- 
tember 30, 1890 (26 Stat. 504). P. 51, 466, Jan., 1892; 0. 157, Aug. 9, 
1894. 

RETIREMENT OF OFFICER. 

Allowances xvhiU awaiting See Pay and allowances II A 2 a (2) (a). 

Detailed staff officer " See Rank I C 2. 

Militiainan See Militia XVI D. 

RETIREMENT OF SOLDIER. 

See Absence I 04 f (I); (2). 
Computation of time See Enlistment I A 9 in. 

RETIRING BOARD. 

See Retirement IB to 0; N to O. 
In Militia See Militia XVI C. 

» 11 Op. Atty. Gen., pp. 8, 9; 12 id., 172, 358; 13 id., 387; 456; 14 id., 275; 15 id., 
208; United States v. Bank of the Metropolis, 15 Peters, 400, 401, in which it is held 
that an Executive can not reopen a case deciaed by a previous Executive. 



1004 EETUBNS REWARD. 

RETURNS. 

Colleges ' See Military instruction II B 2 c. 

RETURNS OFFICE. 

See Contracts XVTI. 
REVIEWING AUTHORITY. 

See Articles of War CIV to CV; CVI A; 
CVII A; CXI A. 
Discipline XIV to XV. 

Charge not sustained See Desertion XIV A 2. 

Disapproval See Desertion XIV A 5. 

Evidence by See Discipline X A 3. 

Gani on court See Articles of War CIV C 4. 

Mitigation See Articles op War CXII Alb. 

Of military commission See War I C 8 a (3) (d) [2]. 

0/ summary court See Discipline XVI E 4 a; b. 

Unauthorized punishment by See Discipline XVII Big. 

REVISED STATUTES. 

See Laws I A to II. 

REVISION BY INFERIOR COURT. 

See Discipline XVI E 4 b. 

REVISION BY GENERAL COURT-MARTIAI. 

See Articles op War CII F. 
See Discipline IX N to O; XIII H. 
By order of President of United States See Discipline XIV H 2. 

REVOCATION. 

Acceptance of resignation See Office IV D 5 d to e. 

Congress can not revoke executed sentence See Pardon I B 1. 

Contract can not be annulled See Contracts XXI C. 

Date of rank See Rank II A 3 to 4. 

Discharge See Civilian employees XI B 3. 

Discharge XV; XVI A to H. 

Enlistment I D 3 c (18) (c). 

Discharge of cadet See Office IV E 2 g (1) (6). 

Dismissal. .'. See Discharge XVII A. 

Office III F 1; IV E 1 b to c. 

Muster in See Volunteer Army II E to F. 

Muster out See Volunteer Army IV F to H. 

Order proclaiming martial law See War I E 1 d to e. 

Pardon See Pardon II A. 

President 's proclamation See Wa r I C 12 a. 

Resignation See Office IV D 1. 

Retirement of officer See Retirement I B 3 d; 6 b (1); b (2); E. 

Retirement of soldier See Retirement II G. 

Summary dismissal See Office I V E 2 d to e. 

REWARD. 

Deserters See Desertion V to VI. 

Detection of crime See Appropriations XII. 



RIGHT OF WAY SAFE CONDUCT. 1005 

RIGHT OF WAY. 

See Public property VI to VII. 

Joint title See Public property II A 5. 

Jurisdiction over See Public property V D 1 a. 

Military reservation .' - See Public property I A 1 . 

National cemeteries See Public property IV A 2 to 3. 

Public land See Public property III C. 

RIGHTS OF CITIZENSHIP. 

See Alien. 
Forfeited by desertion See Desertion XIV B ; B 1. 

RIOT. 

See Army II I to K. 
RIOT ACT. 

Reading of. See Army II I 1. 

RIVER COMMISSIONS. 

See Navigable waters XI to XII. 
RIVER AND HARBOR WORK. 

See Eight-hour law IV. 

See Navigable waters. 

Appropriations. '. See Appropriations XIV; XXXVIII 

Bond, execution of.. See Bonds 1 N. 

Contracts in connection with See Contracts VII F to G . 

Dredging See Contracts XLV. 

Improvements See Navigable waters X to XI. 

ROCK ISLAND BRIDGE. 

Jurisdiction See Command V A 3 c (1). 

Navigable waters III D. 

ROUND ROBIN. 

Offense See Articles ov War LXII D. 

ROYALTY. 

Lien upon patented article See Patent II A. 

RULES. 

Of evidence See Discipline XI A to B- 

SABERS. 

Sharpened See War I 5 a. 

SAFE CONDUCT. 

See War I C 10. 



1006 SALAKY SECRETARY OF WAB. 

SALARY. 

See Tax. 
Exemption from taxes See Retirement I G 2 e. 

SALE. 

See Public property IX to X. 

Damaged property See Tax III M . 

Empty boxes, crates, etc See Public money I J. 

Garbage See Public property I M. 

Heat and light, to civilians not authorized. . See Pay and allowances II A 1 e. 
Public property to State See Militia IX B ; B 1. 

Navigable waters X F to G. 

Public property I A 4 a. 
Uniform clothing See Command V A 3 e. • 

Pay and allowances II A 3 a (4) (a). 

SALVAGE. 

See Claims VI to VII. 
On recapture..... See War I C 6 c (3) (e) [1]. 

SAMPLE. 

With bids See Contracts III I. 

SANITARY INSPECTORS. 

See Command IV B. 

SEA. 

Boundary See Public property II D. 

SEAL. 

Bonds, etc See Bonds I F to G. 

Contracts , See Contracts XXXVI. 

SEAMEN. 

See Army I G 3 b (2) (a.) [3] to [4]. 
See Eight-hour law IV. 
Discharge See Civilian employees XV A. 

SECOND DESERTION. 

See Articles of War CIII F 2 a; 3; 4. 
See Desertion V B 16. 

SECRETARY OF THE TREASURY. 

Control over bonds See Bonds I 0. 

Solvency of corporations See Bonds V L. 

SECRETARY OF WAR. 

See Army I B to C. 

Action irrevocable after notice See Contracts LIV. 

American material See Contracts XXIII G ; H. 



SECRETARY OF AVAR. 1007 

Appointments by See Office III E to F. 

Army bands See Army bands I C 2. 

Attorney General, request on See Discipline IV B 4 a. 

Bids, bonds, and contracts See Contracts VI C. 

Bridges, construction of See Navigable waters III to IV. 

Cadets, authority over See Army I D 2 a; b. 

Cadet, summary dismissal See Discharge XVIII A. 

Civil authorities, rule of comity See Articles of War LIX D. 

Army I B 11. 

Civil War claims See Claims VII G . 

Commutation of rations See Pay and allowances II A 3 b (1) (a). 

Congressional relief for disbursing officer. . .See Army I B 6 b. 

Contractor and eight-hour law -. .See Eight-hour law VII. 

Deposition by See Articles of War XCI A 1. 

Deserters, enlistment of See Enlistment I D 3 c (14). 

Discharge by See Discharge VI ('1; 2; XI B 1; 3. 

Discharges by way of favor See Pay and allowances III C 2 c (3). 

Discharge VI to VII. 

Dishonorable discharge irrevocable See Discharge XIX. 

Enlistments See Enlistments I A 10. 

Evidence by See Discipline X D 1. 

Extra duty by soldier See Army I E 2 c. 

Fraudulent enlistment, disposition See Enlistment I A 9 g to k. 

Gift to United States See Public property I F 4. 

Heat and light allowance See Pay and allowances II A 1 b. 

Honest and faithful service See Enlistment I D 3 c (18) to d. 

Discharge XI to XII. 

Indian country, trade license See Intoxicants III B. 

Insane deserter See Desertion VII A 2. 

Insane persons, care of. See Insanity. 

Insane soldiers, discharge See Discharge V D. 

Lawyer to represent United States See Claims XII M. 

License See Public property I A 1. 

Militia called forth See Militia I B. 

Militia, property not loaned to See Militia IX C; XVI I 5; 6. 

Muster-out order has force of law See Volunteer Army IV A 1. 

Nolle prosequi See Discipline III E 6. 

Obstructions to navigation, removal See Navigable waters IX C. 

Officer' s leave status ■. See Absence I B 1 b. 

Officer, summary dismissal See Office IV E 2 c (1). 

Officer, supplies purchased from See Contracts XV A 2. 

Orders by See Communications I A 1. 

Pardoning power, ineligible for See Pardon I B 1. ^ 

Personalty, disposition of See Public property I A 3. 

Post laundry See Government agencies I A. 

Predecessor' s action irrevocable See Claims I. 

Retirement I E. 

President, Secretary acts for See Discipline III B 1. 

Public property can not be given aioay See Public property I A 5; B. 

Public property can not be loaned See Public property I C. 

Public property, changes in or damage to See Public property VIII A 4 to 5. 

Quartermaster sergeant's appointment See Army I E 2 b. 

Records amended by See Discharge XIX. 

Beenlistment of deserter See Desertion VI D; XVI A; A 1. 

Regimental staff officers, appointment See Command V C 1 a. 

Regulations See Contracts LI. 

Reimbursements unauthorized See Claims XII P. 

Reward for deserter See Desertion V B (j; 8 a ; 9. 

Reward for embezzler See Desertion V B 18 a. 

Right of ivay, can not grant See Public property I A 1. 

Sentence can not be corrected See Discipline XIV H 5. 

Substitutes See Enlistment II D. 

Unassigned list of officers See Army I G 2 b (2). 

Unliquidated damages See Claims II. 

Useless papers See Official papers I A 1 c. 



1008 SELF-DEFENSE — SERVICE SCHOOLS. 

SELF-DEFENSE. 

See Discipline V D 2 a. 

SENATE. 

Confirmation of appointment See Office III A 3. 

SENIORITY. 
Promotion by See Office III B 1 to 2, 

SENTENCE. 

See Discipline XII B to C. 

Confirmation, death or dismissal See Articles op War LXXII D 1; XCVI 

to XCVII. 

Cumulative See Discipline XVII A 4 b. 

Death See Articles of War XCVI A; B. 

Disapproval, effect of acquittal See Articles of War XLVIII A 2. 

Disclosing See Articles of War LXII D; LXXXIV 

Dismissal See Office I V E 1 to 2. 

Exceeds limit See Discipline XIV E 9 c. 

Executed, can not be pardoned See Pardon IX. 

Executed, irrevocable See Discipline XV I to K. 

Office III F 1; IV E 1 b to c. 

Executed, irrevocable by Congress See Pardon I B 1. 

Fines See Pay and allowances III D to E. 

Forfeiture See Pay and allowances III 1 to 2. 

Grounds for disapproval See Discipline XIV E 9 a to b. 

Illegal See Articles of War CXII C. 

Discharge XV C 1; K 1. 

Military commission See War I C 8 a (3) (d) [1]; (e). 

Of military court See Discipline XII B 1 to F. 

Null and void See Discharge XIII E 1. 

Enlistment I D 3 d (5). 

Pay while awaiting See Pay and allowances I A 1 b ; c. 

Reduction to the ranks See Articles of War LXXXIII C 2. 

Reviewing authority's action See Articles of War CIV A to C 5 a. 

Discipline XIV E to F. 

Set aside See Pay and allowances I C 2. 

Suspended See Command V A 1 b. 

Discipline XVII A 4 e. 

Pay and allowances III A 2 a. 

SENTINEL. 

Homicide by See Articles of War LIX L 1; CII A to I. 

On post. ..'. See Articles op War LIX A. 

Respect for See Discipline XVII Bid. 

SEPARATE BRIGADE. 

Convening authority See Articles op War LXXII 1) 1. 

Reviewing authority after discontinuance of . .See CIV C 1; 3; CVII A. 

See Discipline XIV A 2. 
Under 13 Article of War See Articles op War LXXIII to LXXIV. 

SERVICE SCHOOLS. 

Artillery school See Appropriations XXXVIT. 

Instructors' leaves See Absence I B 1 g(2); (2) (a). 

Maneuvers, destruction of private property . .See Appropriations LVIII. 

Medical school See Appropriations XLI V. 

Militia officers See Militia VI A 1. 



SERVICE WITH TROOPS — SOLDIERS. 1009 

SERVICE WITH TROOPS. 

See Retirement I K 2 c. 

SERVITUDE. 

Defensive purposes See Navigable waters II C . 

Submerged land See Navigable waters 11 B to C. 

SET OFF. 

See Claims VII B 6. 
See Contracts XVIII. 

SHOES. 

Manufactured at. military prison See Discipline XVII A 4 g (2). 

SIGNAL CORPS. 

Inspection of funds See Army I B 2 b (2) (a). 

SIGNATURE. 

See Contracts I to II. 

Authority to sign See Bonds I S. 

College bond See Bonds IV A to F; H. 

End of contract See Contracts XVI to XVII. 

Junior dropped See Name I B . 

Middle initial dropped See Name 1 A. 

Omission of. See Contracts V'I G. 

Partnership See Contract LVI. 

To bond See Bonds 1 II 1. 

Typeivritten or stamped See Contracts LIU . 

Witness See Bonds I J. 

SINGLE MAN. 
Designation of beneficiary See Gratuity I B 2 ; 4. 

SKATING RINK. 

Exclusion of soldiers from See Uniform I A 1: B 1 a. 

SMALL-ARMS COMPETITION. 
By militia See Militia VI C 2 to D. 

SOCIETY BADGES. 

See Insignia of merit 111 A to B. 

SOLDIERS. 

See Enlisted men. 
93673°— 17 64 



1010 soldiers' home I A. 

SOLDIERS' HOME. 

I. AT WASHINGTON, D. C. 

A. Inmates Not Subject to Articles of War Page 1010 

B. Inmates May Leave Voluntarily. 

C. Allowance of Supplies to Officers. 

D. Quarters Not Public Page 1011 

E. Transportation to Home op Needy Discharged Soldiers. 

F. Escheat to United States of Estates of Deceased Inmates. 

G. May Establish Branch Page 1012 

H. Title in United States. 

n. NATIONAL VOLUNTEER HOME. 
in. STATE HOMES. 

I A, Section 4824, R. S., subjecting the inmates of the Soldiers' 
Home to the Rules and Articles of War, is unconstitutional and a 
dead letter. These inmates are no part of the Army, nor are they 
supported by the United States. They are civilians occupying 
dwellings and sustained by funds held in trust for them. The ter- 
ritory of the home being within the District of Columbia, and not 
having been exempted by Congress from the operation of the criminal 
laws of the District, the inmates are subject to those laws like any 
other residents.! P. 55, 4O6, Sept., 1892; C. 16062, Mar. 15, 1904; 
183^2, July^ 20, 1905; 22730, Feb. 10, 1908; 27456, Nov. 7, 1910. 

I B. An inmate is not required to remain at the home if he wishes 
to leave it. The privileges of the institution may be renounced by 
any act showing an intention to renounce them — such as direct notice 
of such intention, or by absenting himself with the evident purpose 
of not returning. In February, 1864, a certain inmate was trans- 
ferred from the home to the Government Hospital for the Insane, 
and was discharged thence as sane in June, 1864. He did not return 
to the home and was not again heard of till March, 1886, when it was 
ascertained that he was at a State hospital for the insane. As 
he was sane when he left the Government hospital and did not 
return to the home within a reasonable time, but remained absent 
nearly 22 years, Tield that he must be deemed, in the absence of con- 
trary evidence, to have intended to permanently separate himself 
from the institution, and that he therefore was not now an inmate 
or member of the same. R. 50, 167, Apr., 1886. 

I C. The funds for the support of the Soldiers' Home are not of 
the class of public moneys annually appropriated for a specific object, 
as for the pay of the Army, but a special trust fund committed to and 
administered by the board of commissioners for the benefit of the 
institution. From an early period in the history of the home it has 
been the usage for the commissioners to permit the officers of the 
home (retired officers of the Army residing thereat), gratuitously to 
receive and use a reasonable portion of the ordinary supplies of fuel, 
light, forage, milk, ice and vegetables, either produced at the home or 
obtained for its consumption. Held that such allowance was not in 
contravention of law ; that the articles thus issued are not of the class 
of military pay and emoluments, and therefore unauthorized because 
not allowea by law to retired officers, but are a reasonable share of 

1 Compare opinion of Attorney General in 20 Op., 514. 



soldiers' home I D. 1011 

the supplies for the use and benefit of the home, the disposition of 
which is properly within the discretion of the commissioners as charged 
by law with the ' 'government and interests " of the home. And simi- 
larly held in regard to the amount of $1,000, allowed annually out of 
sucn funds to the treasurer of the home, as a compensation for his 
special services and in consideration of his pecuniary responsibility as 
a bonded officer.^ P. 51, 296, Jan., 1892; C. 12965, Jan, 23, 1902. 

I D. Held that a medical officer of the Army, occupying quarters 
at the Soldiers' Home, was not thereby precluded from receiving 
commutation of quarters at New York, on being ordered to duty 
there as a member of a medical examining board. The quarters 
occupied by him at the home are not "pubUc quarters"; he does not 
occupy them at the expense of the United States; and by allowing 
him the commutation the Government is not put to a double expense 
for his quarters. P. 56, 174, Oct., 1892. 

I E. Section 4745, R. S., should not be construed as prohibiting 
the practice by which transportation to the Soldiers' Home is fur- 
nished by it to a needy discharged soldier, with the understanding 
that the home will repay itself out of his pension when collected. 
This is not a pledge, etc., of his pension by a discharged soldier within 
the meaning of section 4745, but a repayment by a governmental 
agency to itself out of money belonging to him and placed in his 
hands by law, of money advanced by it to him solely for his interest. 

C. 6922, Feb., 1899. 

I F, The law of the United States for the District of Columbia is 
to the effect that where a person dies intestate, leaving an estate in 
the District and there is no relation of the mtestate within the fifth 
degree, the estate shall belong to the United States. Under this law, 
whenever an inmate has died in the Soldiers' Home at Washington, 

D. C, leaving money in bank in that city, or other moneys or per- 
sonal effects, in the District, the same become the property of the 
United States; and aU such property and effects other than money 
should (by the proper proceedings in court) be converted into money, 
and then this, together with the money left by the soldier in bank or 
elsewhere in the District, should be turned mto the United States 
Treasury by order of court, as money of estates escheated to the 
United States. Section 3689 of the United States Revised Statutes 
appropriates for the Soldiers' Home ' ' out of any moneys in the Treas- 
y^j.y^ * * * all moneys belonging to the estates of deceased sol- 
diers." After, therefore, the moneys and the proceeds of the other 
effects of inmates of the home have been paid by order of court into 
the United States Treasury as moneys of escheated estates, the Sol- 
diers' Home is entitled to receive the same from the Treasury. The 
home is not, however, entitled to it until it shall have gone mto the 
Treasury, so that section 3689 can apply to and appropriate it to 
the use of the home. It is not the duty and probably not within the 

{)Ower of the Soldiers' Home to move m the matter of enforcing the 
aw with regard to the moneys or property of any estate, whether 
the decedents were inmates of the home or not. But as it is the 
duty of the Attorney Greneral of the United States (through the United 
States attorney of this district) to look after and collect all moneys 
and property the United States is entitled to under the law, whether 

' See opinion of Attorney General to same effect, in 20 Op. 350. 



1012 soldiers' home i g. 

^jhe decedents are inmates of the home or whether they are civilians 
who reside elsewhere in the District, advised that h© be informed by 
the proper officials of the home of the death of all inmates who leave 
any money or property in the District and the whereabouts of the 
same, which it may be in his power to collect and turn into the 
Treasury, as above indicated. Money so turned in should be obtained 
by the home by direct application to the Treasury for the same. 
a 3493, Sept., 1897. ^ 

I G. On the questions (1) whether the board of commissioners of 
the Soldiers' Home has authority to establish a branch home; (2) 
whether the Secretary of War has legal authority to grant to the 
Soldiers' Home the right to locate a branch of the home on a military 
reservation and to occupy buildings erected for the military establish- 
ment; and (3) whether, if such right were granted, the board of 
commissioners would have authority to expend funds of the Soldiers' 
Home in keeping such buildings in repair — held, first, that it was the 
intention of the original legislation relating to the Soldiers' Home to 
establish it at one or more places, and no subsequent legislation has 
interfered with this, except as to one locality, and that under the 
legislation as it now stands it would not be illegal to establish a branch ; 
second, that the Secretary of War has no authority independently of 
Congress to grant away any interests in buildings erected on military 
reservations, but that he may do so under legislation of July 28, 1892 
(27 Stat. 321), which vests him with authority, ''when in his discre- 
tion it will be for the public good to lease for a period not exceeding 
five years, and revocable at any time, such property of the United 
States under his control as may not for the time be required for public 
use and for the leasing of which there is no authority under existing 
law" ; and third, that if the Soldiers' Home may thus lease buildings 
on a military reservation, to be used as a branch, the expenditure of 
funds of the home in keeping the buildings in a condition fitting them 
for this purpose would be a legal expenditure notwithstanding that 
the home could not, on the termination of the lease, recover any 
money so expended. C. 6818, July, 1899. 

I H. The Soldiers' Home is not a legal entity, but is simply an 
agency of the United States. The title to its property and funds is 
in the United States and it is supported by funds appropriated by 
Congress. As the title to its property is in the United States, it is 
not subject to attachment by private individuals. C. 16767 , Aug. 
18, 1904. 

II. Held that section 4835, R. S., which provides that the inmates 
of the "National Home for Disabled Volunteer Soldiers" shall be 
subject to the rules and Articles of War, is unconstitutional, and that 
such inmates are not a part of the Army of the United States, but are 
civilians. R. SO, 286, Apr., 1870; C. 12817,, July 2, 1902. Held, 
also, that under the act of March 3, 1891 (26 Stat. 984), all receipts 
must be reported to the Secretary of War. P. 51, 10 4, Dec. 31, 1891. 

III. The act of August 27, 1888 (25 Stat. 450), makes provision 
for the payment of money by the United States to such States or 
Territories as have established, or which shall hereafter establish, 
State homes for disabled soldiers and sailors of the United States who 
served in the Civil War or in any previous war, who are disabled 
by age, disease, or otherwise, and by reason of such disability are 
incapable of earning a living. Held that the United States, aside from 



SOLDIERS^ HOME: — STAMPS. 1013 

verifying the number of inmates cared for, makes no inspections 
of, or exercises no supervision over, such State or Territorial homes. 
a 2222, Apr., 1898. Held, further, that a State is entitled to re- 
ceive under the above act an allowance on account of inmates who 
are insane and being cared for in asylums. C. 3121, Apr., 1897. 

CEOSS REFERENCE. 

Attendant to entering inmate See Army IBS. 

Bonds of. See Bonds I H 2. 

Contracts with See Contracts XVI E; XXXII. 

Intoxicants, sale of See Intoxicants IV. 

Retired soldier not eligible See Retirement II B 6. 

Taxation of inmates See Tax I F. 

SPANISH WAE. 

Beginning of See War I B 2. 

Termination of See War I F 2. 

SPECIFICATION. 

See Discipline II A to H 2. 
Defective See Discipline II A 1 a. 

SPY. 

Ofense See War I C 2 d; 3 to 4. 

Sentence See War I C 8 a (3) (e). 

Trial by military commission See War I C 8 a (3) (6) [3]. 

UATTERS. 

Indian country See Army II J 5. 

Military reservation See Public property II B 3 a; III H to I. 

STAFF. 

See Army I G to H. 

Detailed See Army I B 2 a (1); G 3 to H. 

Office III B 6 a; D 1 c. 
Soldiers, extra duty See Pay and allowances I C 6 b (3). 

STAFF DUTY NOT INVOLVING SERVICE WITH TROOPS. 

See Retirement I K 2 to 4. 

STAFF OFFICERS. 

Battalion See Office I V G. 

Bond of See Army I G 3 b (1). 

Command See Command 1 A 1 ; VII A. 

Corivening authority See Articles of War LXII E L 

Detailed See Army I B 2 a (1); G 3 to 4. 

Office III B 6 a. 

General Staff. See Office III Die. 

Leaves See Absence I B 1 f . 

Beviewing authority See Discipline XIV C. 

State, ■payment of See Militia XI B. 

STAMPS. 
On bids ...See Contracts VI G. 



1014 STATE STATUS. 

STATE. 

Arms, right to carry See Government agencies V. 

Comity between military and civil See Army I B 11. 

Articles of War LIX D. 

Courts can not enjoin Federal agent See Contracts LVIII. 

Courts can not enjoin United States courts. .See Public money II C 6. 

Flag, protected by See Flag III. 

Military reservation, jurisdiction over See Public property V F 1 to 2, 

Protection of. See Army II A. 

War I E I f . 

Republican form of government See Army II I 4. 

Submerged land, title to See Navigable waters II A to B» 

STATE AND MUNICIPAL OFFICE. 

Retired officers' eligibility for See Retirement I G 3 b. 

STATE CAMPS OF INSTRUCTION. 

See Militia VI B 1 to 2. 

STATE HOMES FOR DISABLED SOLDIERS. 

See Soldiers' Home HI. 

STATION. 

Proper station See Absence II B 6. 

STATUS. 

Absence with leave See Absence I C 4 b. 

Absence without leave See Absence I C 1 b; II B 3; 4 a; b; 5. 

Pay and allowances I C 2. 

Accused, after disapproval See Discipline XIV E 9 b to c. 

Accused after escape See Discipline VIII H 2. 

Active service See Retirement I k 1. 

After acquittal See Discipline XII I 1 . 

After discharge without honor See Pay and allowances I C 5 b (1). 

After dishonorable discharge See Pay and allowances I 5 b (2). 

After resignation, dismissal See Discipline VIII I 1 to 2. 

American National Red Cross in time of war. See B,ED Cross II B. 

Arrest See Discipline I B to C. 

Awaiting orders See Absence I B 1 h. 

Pay and allowances I B 2. 
Certificate of merit awarded during fraudu- 
lent enlistment See Insignia of Merit II D. 

Civilian, changed by enlistvient See Enlistment I A. 

Civilian employees armed See Civilian employees XIII to XIV. 

Chief of Philippine Constabulary See Command I C. 

Confinement m penitentiary See Discharge IV C. 

Consolidation of regiments See Volunteer Army II B 1 e. 

Continuous service See Pay and allowances I C 5 to 6. 

Contract dental surgeon See Army I G 3 d (4) (d). 

Contract surgeon See Army I G 3 d (4) to (5). 

Department commander, absent See Articles op War LXXI A. 

Deserter after draft See Enlistment II F. 

Desen'tion fixed administratively See Desertion XIV A3; 5. 

Dishonor See Discharge II B 1. 

Dismissed officer See Pardon XV B. 

Duty See Absence I A; B 1 b; b (1). 

Articlbs of War XXXVIII B 1; 2. 
Duty, termination See Communications I B 2; C. 



STATUS — STATUTE OF LIMITATION. 1015 

Duty with civil government, Philippine Is- 
lands See Absence I B 1 g (3). 

Engineer officers See Navigable waters X B 1. 

Enrolledmen See Enlistment II A. 

Enrollment previous to muiter in See Volunteer Army II A to B. 

Escaped general prisoner See Pardon II A. 

Extra duty See Pay and allowances I C 6 to 7. 

General Staff officer See Army I G 3 a (1) (a). 

Honest and faithful service See Enlistment I D 3 a. 

Discharge XI to XII. 

Honor See Discharge II B 2. 

Illegally, dishonorably discharged See Discharge XVI G to H. 

In handi of civil courts See Pay and allowances I C 3. 

Insane officer awaiting retirement See Retirement I B 6 d. 

Medical cadets See Pay and allowances I B 6 a. 

Medical Reserve Corps officer See Army I G 3 d (3) (c) to (4). 

Member of general court-martial See Discipline VI C. 

Military, of enlisted men See Army I E 3 to 4. 

Militia at 'joint encampment See Militia II A; B. 

Militia when called forth See Militia ID. 

Volunteer Army I. 
Mustered-out Volunteer See Discipline III B 2 b. 

Volunteer Army IV B to C. 

Noncommissioned officers absent, sick See Army I E 1 b. 

Nurse Corps See Army I G 3 d (6) (a) [1]. 

Absence I D to E. 
Officer after approval of examining board's 

proceedings See Retirement I B 6 e (2). 

Officer after disapproval retiring board's 

'finding See Retirement I B 3 b. • 

Officer in hai^ds of civil authorities See Absence II A 1. 

Officer on transport See Command V B 1. 

Officer under charges in arre t, or under 

sentence, leave itatm See Command V A 1 b. 

Offi<:er under ''conservator" See Discipline III E 5 a. 

Officer wholly retired See Retirement I N to . 

Orders affecting, take effectwhen? See Pay and allowances III C 1 b. 

Pay See Pay and allowances I A to B. 

Pensionable See Absence I B 1 b (1). 

Army I G 3 b (2) (a) [3] [6]. 

Porto Rican Regiment See Army I G 2 a (1). 

Present with command See Retirement II A 4 b (1). 

Prisoner after mitigation See Discipline XVII A 4 f . 

Primncr 'of war See War I C U c (6) to (7); 11 d (2) (a) 

Retired officer See Retirement I C to N. 

Retired soldier See Retirement II B to H. 

Ship's offiA^ers See Army I G3b (2) (a) [3] [6]. 

Shown by mmter roll See Absence II B 8 b. 

Soldier in hands of civil authorities See Command V A 2 c. 

Enlistment I B 2 b. 

Soldier under punishment See Discipline XI B 4 a; b. 

Superintendent of national cemetery See Public property IV A 3 a. 

Suspension from rank See Discipline VIII G 1 c; c (1). 

Retirement I N 3. 
Under act of April 23, 1904 {33 Stat. 264).-.. See Retirement I C to D. 

Volunteers See Volunteer Army I B to D; IV C. 

Volunteers before muster-in See Volunteer Army II C to D ; F 1 a to b 

War, termination See War 1 F 2; 3. 

STATUTE. 

See Laws I to II. 

STATUTE OF LIMITATION. 

See Articles of War CIII to CIV. 

Courts of inquiry See Discipune XVI D. 

Desertion See Desertion X D; XVII to XVIII. 



1016 ' STOPPAGE SUBSTITUTION. 

STOPPAGE. 

See ClYrcrAiV EMPLOYEES II tO III. 

See Pay and allowances III B to C. 

Contract, faulty See Contract II . 

Deserter's pay See Desertion V D to F ; XIV to XV. 

Government agencies, reimbursement See Government agencies I B. 

Private debts not paid thus See Private debts II. 

Retired soldiers See Retirement II C to D. 

Unauthorized See Discipline XVII B 1 f . 

Under fifty-fourth article of war See Articles of War LIVB;C; CI; Dl;2. 

STOREHOUSES. 
Occupation of. See Claims VII C 2. 

STREETS. 

Boundary See Public property II C. 

STUDENTS. 

College See Military instruction II B 1 to 2. 

Company of militia See Militia III L. 

SUBMERGED LAND. 

Jurisdiction over See Command V A 3 f . 

Title to See Puplic property II D 1. 

Towing targets over lobster pots See Army I G 2 b (3) . 

SUBORNATION OF PERJURY. 

See Articles of War LXI B 2. 

SUBPCENA. 

By Judge Advocate See Discipline IV B 3 a to d (1). 

Civil court See Army I E 5. 

Duces tecum See Discipline VII E 1; XI A 17 b (2) (a). 

Obedience to See Discipline X D. 

Service of See Discipline X F to G. 

Territorial courts See Territories II A. 

SUBROGATION. 

Surety to contract See Contracts XIV I. 

SUBSISTENCE. 

Militia, sale to See Militia VI B 1 d; 2 g. 

Officers' servants See Army I G 3 d (8) (a). 

Prisoners See Pay and allowances III C 1 b (1). 

Recruit See Desertion XXII A. 

Retired soldier See Retirement II B 3 b. 

SUBSISTENCE DEPARTMENT. 

Allowances furnished by See Pay and allowances II A 3 b to c. 

Details to See Army I B 2 b (1) (li); G 3 b (3) to (4). 

Heat and light See Appropriations XL. 

SUBSTITUTE. 

Far draft See Enlistment II D. 

SUBSTITUTION. 

InfindiTig See Discipline XIII A 5 to 6. 

Of punishment See Articles of War CXII Alb. 



SUICIDE SURETY. 1017 

SUICIDE. 

See Gratuity I A 4 to 5; B 5. 

SUMMARY COURT. 

See Discipline XVI E to F. 

SUMMARY DISCHARGE. 

See Discharge II B 1. 

As pardon See Pardon XIII; XVI D. 

Discharge without honor See Discharge III A; F 2. 

Organizations See Discharge II B 4 ; III G. 

SUMMARY DISMISSAL. 

Cadets See Discharge XVIII A. 

Effect of. See Pay and allowances III A 1 to 2. 

Officer See Office IV E 2 to 3. 

Philippine Scout See Discharge XX B. 

Volunteer See Office V A 7 c. 

SUMMARY PUNISHMENT. 

See Discipline I E 2. 

Hazing See Army I D 3 b (2) (a). 

Unauthorized See Discipline XVII 13 1 to 2. 

SUNDAY. 

Enlistments on See Enlistment I A 4. 

SUPERIOR OFFICER. 

See Articles of War XXI A. 
Homicide of. See Articles op War XXI E 1; 2. 

SUPPLEMENTAL CONTRACT. 

See Contracts VII J to VIII; XX C 11. 
Sureties on bond not bound See Bonds I M 3. 

SUPPLIES. 

See Army I G 3 b to H. 

Allies furnish See Claims VII B G. 

War I C G d (1). 

Appropriation for See Appropriations XXXI. 

Sale of. See Public property IX A. 

Salvers ' suit See Claims VI B . 

To militia See Militia IX to X; XVI I to J. 

Under section 3709, Revised Statutes See Contracts VII C. 

SUPPLY STAFF. 

See Army I G 3 b to H. 

SURETY. 

See Bonds I M to N. 

Acceptance of See Bonds IV K. 

Bonds with corporate See Bonds V A to L. 

Disbursing officer See Bonds II C; D. 

Individual See Bonds III G. 

Liability of See Bonds IV O. 

Of contractor See Contracts XIV I. 

Officer as See Bonds II K. 

Opportunity to enter See Contracts XXIX. 

Substitution of See Bonds II N. 

To bonds See Bonds I M to N. 



1018 SURGEON — tax: synopsis. 

SURGEON. 

Always on duty See Articles of War XXXVIII B 2. 

Morphine -prescribed See Retirement I B 6 f (1). 

Practice of See Army I G 3 d. 

Office IV A 2 e (4). 

Government agencies VI. 

SURGEON GENERAL. 

Duty of. See Army I G 3 d (3) (a). 

Library in office of See Appropriations LIV. 

SURVEYING OFFICER. 

Fioies accountability See Public property I F 3 to 4. 

Jurisdiction of See Articles op War XVII C. 

Militia See Militia IX H I. 

SUSPENSION. 

Cadet See Army I D3b (1). 

Civilian employee See Civilian employees XI B 1. 

Effect See Pay and allowances III A 2 a. 

Failure on examination See Retirement I B 6 c to d. 

From rank See Office III B 1 a (2); (3). 

Rank V to VI. 

TARGET PRACTICE. 

False record See Articles of War LXII D. 

7s lawful See Claims V. 

Militia See Militia VI C to D; XI P. 

Towing of targets See Army I G 2 b (3). 

TARGET RANGES. 

Acquisition of. See Militia VI C 1 to 2. 

TAX.^ 

I. TAXATION OF OFFICERS, SOLDIERS, EX-SOLDIERS, AND PENSION- 
ERS AND THEIR PRIVATE PROPERTY. 

A. Officer or Soldier Can Not be Taxed for Pay or Property Used in 

Connection with Military Duties Page 1019 

B. Above Rule Applies to Retired Officers and Soldiers Page 1021 

C. Poll Tax Can Not be Imposed on Officers and Soldiers. 

D. Officers and Soldiers Taxable for Property Not Military. 

E. Residence Depends Upon Intent. 

F. Former Soldiers, Pensioners, and Inmates of Soldiers' Homes Not 

FOR That Reason Exempt Page 1022 

G. Ex-Soldiers Not Exempt from License Fee. 
n. TAXATION OF GOVERNMENT EMPLOYEES. 

A. Civilian Employee Can Not be Compelled to Work on Roads for 

Failure to Pay Tax. 

B. Civilian Employee Residing on a Reservation in a Territory is 

Liable for Payment op School Tax. 

' Prepared by Maj. H. M. Morrow, judge advocate, assistant to Judge Advocate 
General, U. S. Array. 



TAX I A. , 1019 

m. TAXATION OF PRIVATE PROPERTY ON MILITARY RESERVATIONS, 
AND OF PROPERTY OF THE UNITED STATES AND ITS 
AGENCIES. 

A. State Can Not Tax Government Property Page 1023 

B. Taxes Which Were Lien on Land When Conveyed Not Enforceable 

when Exclusive Jurisdiction Has Been Ceded. 

C. In Act Ceding Jurisdiction State May Reserve Power to Tax Persons 

AND Corporations in Reservation. 

D. Where Exclusive Jurisdiction Not Ceded, State May Tax Sale of 

Liquor in "Canteen." 

E. Private Improvements on Reservation Taxable where Exclusive 

Jurisdiction Not Ceded. 

F. Government Property Not Subject to Tax for Street Improvements. 

G. Although United States Can Not be Taxed for Construction of 

Sewer, It Can Not Use Sewer Without Paying Privilege. Page 1024 

H. A State Tax on Sales op Real Estate Not Operative Against 
United States. 

I. "Consumption Tax" on Sugar Purchased in Porto Rico Not Opera- 
tive Against United States. 

J. United States Can Not be Compelled to Pay Local Authorities Fee 
FOR Inspection Services in Accordance With State Laws, But 
May Enter into Contract to Have Such Inspection Made. 

K. United States Not Subject to Fee for Quarantine Inspection and 
Harbor Regulation Page 1025 

L. United States Not Subject to Fee for Health Certificates Required 
BY State Authorities for Soldiers While Being Transported to 
Another Station Page 1026 

M. United States not Subject to Payment of Local License Fee for 
Selling Damaged Property as Authorized by United States Laws. 

N. United States Not Subject to Payment of State License Fee for 
Automobile Used in Service of United States. 

0. United States Not Subject to Tax in District op Columbia por License 
FOR Government Vehicle. 

P. Government Instrumentality Not Subject to State or Municipal 
Taxation. 
IV. MISCELLANEOUS. 

A. Government Disbursing Ofpicer Can Not Withhold Money From a 

Contractor or Employee to Pay Their Territorial School Tax. 

B. a Notice of a Territorial School Tax May be Posted on a Military 

Reservation in a Territory ip it Does Not Interfere With Mili- 
tary Administration. 

I A. The authorities of a State or Territory (or, of course, of a 
county, town, etc.) are not empowered to tax an officer or soldier 
of the Army on account of his pay, or for any personal property 
in his possession properly required for the due exercise of his office 
or performance of his military duties. Officers and soldiers of the 
Army are instrumentalities provided by law to enable or assist the 
President to exercise his constitutional function of Commander in 
Chief and Executive of the Nation. The pay and emoluments fur- 
nished them by Congress are means to make their services possible 
and effective, and their right to receive and enjoy the same can 
not in any degree be impaired or infringed upon by the authorities 
of a State, which is a distinct and inferior sovereignty, or of a Ter- 



1020 TAX I A. 

ritory, which is another instrumentahty of the United States. And 
the same principle of exemption properly applies to their arms, 
equipments, horses, and other personal property required to be 
possessed and employed by them in the military service.^ R. 30, 
215, Mar. 31, 1870; 39, 563, June 3, 1878; O. 3574, -Mar. 14, 1902, 
Jan. 9, 1905, and Feb. 13, 1911; 14582, Mayl, 1903; 22521, Dec. 19, 
1907, and May 8, 1908; 23343, June^ 6, 1908. The Philippine Islands 
and Porto Rico are Territories within the meaning of the above rule. 
C. 21469, Apr. 24, 1907. But, of course, an instrumentality of the 
United States may be taxed by a State or Territory, if such tax is 

' In the leading case applicable to this subject — Dobbins v. Commissioners of Erie 
County,^ 16 Peters, 435 — the Supreme Court of the United States, in declaring to be 
unconstitutional a State statute, bo far aa it authorized the taxing of the office of a 
captain in the U. S. revenue service, held aa follows: "The compensation of an officer 
of the United States is fixed by a law made by Congress. It is in its exclusive dis- 
cretion to declare what ehaU be given. It exercises the discretion and fixes the 
amount, and confers upon the ofiicer the right to receive it when it has been earned. 
Any law of a State imposing a tax upon the ofiice, diminishing the recompense, is 
in conflict with the law of the United States which secures the allowance to the 
officer." Further: "Taxation by a State can not act upon the instruments, emolu- 
ments, and persons which the United States may use and employ as necessary and 
proper means to execute their sovereign powers. * * * The State governments 
can not lay a tax upon the constitutional means employed by the Government of 
the Union to execute its constitutional powers." In alater case — Society for Savings 
V. Coite, 6 Wallace, 605, the same court declares: "All subjects over which the sov- 
ereign power of a State extends are, as a general rule, proper subjects of taxation, 
but the power of a State to tax does not extend to those means which are employed 
by Congress to carry into execution the powers conferred in the Federal Constitution. 
Unquestionably the taxing power of the States is very comprehensive and pervading, 
but it is not without limits. State tax laws can not restrain the action of the National 
Government nor can they abridge the operation of any law which Congress may 
constitutionally pass." This general doctrine is applied by Attorney Genenal Black 
(9 Op., 477) as follows: "The authorities of a State can not impose a tax upon the 
salary of a Federal officer, or upon the compensation paid by the United States to 
any person engaged in their service." And as illustrating the principle involved, 
see also McCulloch v. Maryland, 4 Wheaton, 316; Weston v. Charlestown, 2 Peters, 
449; Searight v. Stokes, 3 Howard, 151; Bank of Commerce v. N. Y. City, 2 Black, 
620; Provident Inst. v. Mass., 6 Wallace, 611; The Banks v. The Mayor, 7 id., 16; 
Bank v. Supervisors, id., 26; McGoon v. Scales, 9 Wall., 23; Railroad Co. v. Pvaniston, 
18 id., 5; Van Brocklin v. Tennessee, 117 U. S., 151; Wisconsin Railroad Co. v. Price 
County, 133 U. S., 497; Ohi« v. Thomas, 173 U. S., 276; Carrol v. Perry, 4 McLean, 25; 
Stetson V. Bangor, 56 Maine, 274; Opinion of Justices, 53 N. Hamp., 634; United States 
V. Weise, 5 Pa. L. J. R., 61; West. Un. Tel. Co. v. Richmond, 26 Grat., 1; State v. 
Garton, 32 Ind., 1; 7 Op. Atty. Gen., 578; 14 id., 199. In the case of Railroad Com- 
pany V. Peniston, supra, it is specified by Strong, J., that, "the States may not levy- 
taxes, the direct effect of which shall be to hinder the exercise of any powers which 
belong to the National Government." In Ohio v. Thomas, supra, the syllabus reads 
as follows: "In making provision for feeding the inmates of the soldiers' home in 
Ohio, in accordance with the legislation of Congress in that respect, and under the 
direction of the board of managers, the governor of the home is engaged in the internal 
administration of a Federal institution, and the State legislature has no constitu- 
tional power to interfere with the management which is provided for it by Congress, 
nor with the provisions made by Congress for furnishing food to the inmates, nor 
does the police power of the State enable it to prohibit or regulate the furnishing 
of any article of food approved by the officers of the home, by the board of managers, 
and by Congress." In the 14 Op. Atty. Gen., 199, it was held that with respect 
to land owned by the United States within the limits of a State, over which the State 
has not parted with its jurisdiction, the United States starids in the relation of a 
proprietor simply; and the State officers have the same right to enter upon such 
land, or into the buildings located there, and seize the personal property of indi- 
viduals for nonpayment of taxes thereon, as they have to enter upon the land or 
into the buildings of any other proprietor for the same purpose, such right being 
so exercised as not to interfere with the operations of the General Government. 



TAX I B. 1021 

authorized by Congress. For instance, the two acts of August 5, 
1909 (36 Stat. 11, 130), authorized the imposition of customs duties 
and internal-revenue taxes on supplies imported into the Philippine 
Islands for the use of the Army. C. 27 W, Mar. IJf., 1911. 

1 B. The principle exempting from taxation the office or salary of 
an officer of the United States applies to officers on the retired list 
equally with those on the active list of the Army. Retired officers, 
being a part of the Army, are a part of the machinery of the Gov- 
ernment, though a part not often called into active operation. R. 36, 
154, Dec. 21,1874; ^91, Mar. 2, 1875; C. 14582, May 1, 1903. But 
though a retired officer can not legally be taxed by State or munic- 
ipal authorities on account of his Army pay as property or income, 
he is subject to be taxed for other property owned by him like any 
other citizen. R. 42, 669, June 1, 1880; C. 3574, July 23, 1909. 
Similarly held with respect to enlisted men on the retired list of 
the Army. C. 3016, Mar. 25, 1897; 6799, July, 1899; 14582, May 1, 
1903; 22521, Dec. 19, 1907, and May 8, 1908. 

1 C. The imposition of a poU tax with the alternative that if the 
tax was not paid the person taxed should work upon the road would 
be a tax on the earnings of an Army officer or soldier on the active 
list, or tax on such an officer's time, and therefore can not legally be 
made.^ C. 11873, June 21, 1909; 22808, Mar. 24, 1909. ' 

I D. An officer or soldier of the Army, though not taxable officially, 
may be and often is taxable personally. He is not taxable by a State 
for his pay, or for the arms, instruments, uniform clothing, or other 
property pertaining to his military office or capacity, but as to h,ouse- 
hold furniture and other personal property, not military, he is (except 
where stationed at a place under the exclusive jurisdiction of the 
United States) equallj^ subject with other residents or inhabitants to 
taxation under the local law.^ R. 53, 598, Apr. 27, 1888; 55, 623, 
June 8, 1888; P. 49, 217 Sept. 19, 1891; C. 472, Oct. 11, 1894; 3521, 
Sept. 18, 1897; 4888, Sept. 1, 1898; 3574, Mar. 14, 1902, and Jan. 9, 
1905, and Feb. 13, 1911. 

1 E. The question of residence is one of personal intent, an act of 
win being necessary to acquire it. An officer or soldier on the active 
list can not properly be taxed as a resident of a State or Territory on 
the sole ground that he is stationed at a post or place within such 
State or Territory. A member of the Army is commorant at his mili- 
tary station not by his own volition but in pursuance of the orders of 
a military superior. By further orders, also, he is liable at any time 
to be removed to a different station and one in another State. His 
abiding at his station is therefore both involuntary and temporary, 
and it is in general much more reasonably presumable that an officer's 

' See Pundt v. Pendleton, 167 Fed. Rep., 997, where it was held that persons 
employed by the Quartermaster's Department as teamsters were exempt from road 
duty, the court saying: "This view of the matter, however, is not controlling wtfli me 
because I believe Pundt is exempt from this road duty not only for the reason just 
mentioned, but because of the fact that he is a necessary instrumentality in that por- 
tion of the United States Army stationed at Fort Oglethorpe, and that he is such an 
important and necessary part of the military establishment as that the State and the 
county of Catoosa have no right to call on him to be absent from the fort when such 
absence would interfere with the proper discharge of his duties as a necessary and 
important, even if an humble, part of the Army of th© United States." 

2 See Finley v. City of Philadelphia, 32 Pa. St., 381. 



1022 TAX I F. 

station is not his residence than that it is such.^ R. SO, 215, Mar. 31, 
1870; 37, 396, Mar. 16, 1876; 39, 663, June 3, 1878; 41, 120, Feb. 21, 
1878; C. 3574, Mar. 14, 1902; 14852, June 25, 1903; 21091, Feb. 14, 
1907. 

I F. The fact that a man has formerly been a soldier, or is now in 
the receipt of a pension, or is an inmates of a National Home of Volun- 
teers can aifect in no manner his liability to taxation in the State of 
his residence or habitancy, unless, and only so far as, he may belong to 
a class specially exempted from taxation by the laws of the State. 
There is nothing in the laws of the United vStates to relieve such a per- 
son from a per capita tax or a tax on his property. P. 60, 325, July 
8, 1893; 65, 161, May 29, 1894; C. 2513, Aug. 11, 1896; 3574, July 23, 
1909; Feb. 13, 1911; 11063, Aug. 15, 1901; 13119, Sept. 6, 1911; 
13515, Oct. 23,1902; 13880, Dec. 31, 1903; 17962, May 3, 1905. Nor 
is there anything in the laws of the United States to relieve a dis- 
charged soldier who had become disabled in the service, or is a pen- 
sioner, from paying a road tax or working on the public roads. 
C. 2167, July 6, 1897; Feb. 14, 1906. 

I G. There is no statute of the United States exempting ex- 
soldiers of the regular or volunteer service from paying the usual 
license fees for selUng or peddling goods that may be required by 
State laws or municipal ordinances. C. 17962, May 3, 1905, Apr. 16, 
1908, Dec. 11, 1911. 

II A. The superintendent of a national cemetery can not be im- 

f)risoned or compelled to work upon the roads for failure to pay a tax 
evied by the State authorities .f C. 29377, Jan. 17, 1912. 

II B. A Territorial law provided that every male inhabitant of the 
Territory should be liable to pay a school tax, and that any person, 

' That a person, however, shall be a resident or inhabitant (terms having practi- 
cally the same meaning in law) of a State is not essential to render him or his property 
taxable. The power of a State to tax, which is "one of its attributes of sovereignty," 
extends to all subjects — persons, property, or business within its jurisdiction, and it 
may, as a general rule, legally tax personal property held or being within its limits, 
without regard to the domicil of the owner. See case of State Tax on Foreign-Held 
Bonds, 15 Wallace, 319; Railroad Co. v. Peniston, 18 id., 29; Duer v. Small, 4 Blatch., 
263; People v. McCreery, 34 Cal., 432; Hanson v. Vernon, 27 Iowa, 48; City of Philad. 
V. Tryon, 35 Pa. St., 404; 14 Op. Atty. Gen., 200; Pundt v. Pendleton, 167 Fed. Rep., 
997. C. 14335, Mar. 20, 1905. In the opinion last cited, the Attorney General, upon 
the question of the authority of the State of New York to tax the property of soldiers 
held by them upon a part of the Government lands at West Point as to which a cession 
of the State jurisdiction had not in fact then been obtained, held as follows: "If the 
personal property referred to is of a kind subject to taxation by the laws of the State, 
and its sitiis is within the territorial jurisdiction of the State, I do not think that the 
fact that the owner is an enlisted man in the service of the United States and has done 
nothing to gain residence or citizenship in the State is in itself sufficient to exempt the 
property from State taxation." And it is added: "In regard to land owned by the 
United States within the limits of a State, over which the State has not parted with 
its jurisdiction, the United States stand in the relation of a proprietor; and the local 
officers have, in my opinion, the same right to enter upon such land, or into the build- 
ings located there, and seize the personal property of individuals for nonpayment of 
taxes thereon, as they have to enter upon the land or into the buildings of any other 
proprietor for the same purpose ; it being understood that in the former case the right 
must be so exercised as not to interfere with the operations of the General Govern- 
ment. ' ' And see 14 Op. , 27. Persons, however, residing within a reservation or place, 
exclusive jurisdiction over tvhich has been ceded to or reserved by the United States, are not 
taxable by the authorities of the State within the limits of which the post or place is 
situated. See Mitchell v. Tibbetts, 17 Pick., 298; Opinion of Justices, 1 Met., 580; 
Commonwealth v. Young, Bright, 302; 6 Op. Atty. Gen., 577. 

•^ See Pundt v. Pendleton (167 Fed. Rep., 997), holding that Government teamsters 
were exempt from work on the public roads. 



TAX m A. 1023 

company, or corporation having in his or their employ any person 
hable to pay such school tax should, on demand by the school-tax 
collector, furnish a list of the names of such persons and pay the tax 
for them. Held that Government employees residing on the reserva- 
tion would be liable for the payment of the school tax unless it 
appeared that an instrumentality of the United States was adversely 
affected as the result of the imposition of the tax. C. 23343, June 6, 
1908, and June 9, 1909. 

Ill A. In ceding to the United States exclusive jurisdiction over a 
mihtary reservation, the act of the legislature of the State need not 
specifically relinquish the right to tax the propert}^ of the United 
States, as the State independently of any act of cession has no right 
to tax the means or instrumentalities whereby the Government of the 
United States performs its functions. P. 64, 330, Apr. 9, 1894. 

Ill B. Where taxes are a lien upon land at the time it is conveyed 
to the United States, and exclusive jurisdiction has been vested in 
the United States, the taxes are not enforceable against the property 
of the United States.^ C. 1838, May 14, 1906. 

Ill C. The act ceding jurisdiction over the military reservation of 
Fort D, A. Russell reserved to the State power to tax persons and 
corporations doing business on the reservation. Held that such a 
reservation of power was constitutional.^ C. 27365, Oct. 15, 1910. 

Ill D. Held that as exclusive jurisdiction had not been ceded by 
the State of Nebraska over the military reservation of Sidney Bar- 
racks, the State authorities could legally levy a license tax for the 
selling of beer at the post canteen.' R. 50, 153, Mar. 30, 1886. And 
similarly held as to the authority of officials of Michigan to tax, under 
the laws of that State, the selling of Hquor at the canteen of Fort 
Mackinac, a post not under the exclusive jurisdiction of the United 
States. P. 3'6, 161, Oct. 29, 1889. 

Ill E. The Mackinac National Park was established by the act of 
Congress of March 3, 1875 (18 Stat. 517), which also authorized the 
Secretary of War to grant leases, for building purposes, of certain 
small parcels of land within the park. Under this authority a num- 
ber of parcels were leased upon which improvements were made by 
the lessees, and the State authorities have proceeded to impose taxes 
upon such improvements. By the act of Congress of June 15, 1836, 
authorizing the admission oi the State of Michigan, lands of the 
United States within the State were to be exempted from taxation. 
But the State has never ceded to the United States exclusive juris- 
diction over the lands of this park, and therefore never parted with 
its authority to tax private property located therein. Held that the 
improvements referred to were legally taxable as the private property 
of individuals under the laws of the State. P. 39, 89, Feb. 26, 1890. 

Ill F. Certain land was conveyed to the United States by the 
city of St. Paul, Minn., in 1892, for the erection thereon of a quarter- 
master and commissary depot, an appropriation having been made 
by Congress for the purpose on condition that the land should be 
conveyed to the United States free of cost. Held that the property 

' 15 Op. Atty. Gen., 167; Martin v. House, 39 Fed. Rep., 694; Brannon v. Burnes, 
39 id., 892. See XIV Comp. Dec, 506. 

2 See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525. 

^ The "canteen, " referred to in this section, was not the same as the "post exchange, " 
which is maintained under existing regulations. See the opinion of the Court of Claima 
quoted in Dugan v. United States, 34 Ct. Cls., 458. 



1024 TAX III G. 

is an instrumentality of the United States Government, and as such 
is not subject to local taxation of any kind, and therefore not subject 
to an assessment for street improvements. This principle, declared 
by Chief Justice Marshall in McCulloch v. Maryland (4 Wheat., 
315), has been applied in a large number of later cases and can no 
longer be questioned.^ C. 2598, Sept. 10, 1896; 8272, May 23, 1900; 
10094, Mar. 29,^ 1901. Similarly held, with respect to assessments, 
under State legislation and municipal ordinance, for the improve- 
ment of street and sidewalks adjacent to the military reservation of 
Jackson Barracks, La. C. 2637, Sept. 25, 1896; 25195, July 26, 1909. 
So, lield, with respect to a municipal assessment for sprinkling the 
street in front of the United States clothing depot at St. Louis. ^ 
C. 11874, J(^n. 10, 1902. Also lield that the United States was not 
liable for an assessment for laying water pipes or constructing a 
sewer ^ along a street adjacent to a national cemetery. C. 3930, 
Mar. 12, 1898; 13428, Oct. 11, 1902. 

Ill G. Although the United States is not liable to the payment 
of an assessment for the construction of a sewer along the street 
adjacent to its property, still if it desires to use a sewer constructed 
and owned bv a town it must pay for such privileges.* C 6831, 
June 24, 1902; 13428, Oct. 11, 190-2. 

Ill H, A tax on real estate purchases under the laws of Tennessee 
would not be operative against the United States as a purchaser of 
land in that State for the Shiloh National Mihtary Park.^ C. 2062, 
Apr. 2, 1897. 

Ill I. The United States is not liable for a ''consumption tax" 
levied on sugar purchased in Porto Rico for the use of United States 
troops. C. 6054, Mar. 18, 1899. ^ 

III J. The board of animal inspectors at Honolulu, appointed 
under a statute of Hawaii, submitted a claim for inspecting cavalry 
horses and draft mules of the United States, amounting to the statu- 
tory fee, Jield that the claim was in effect a tax by the Territory of 
Hawaii on the operations of the Government of the United States; 

^ The Comptroller of the Treasury, in an opinion dated January 30, 1896 (Vol. II, 
375), said: "It is well-established law that the property of the United States, or any 
of the instrumentalities employed by them in the performance of their proper func- 
tions, is not the subject of taxation by the States or any subdivisions thereof. (Mc- 
Culloch V. Maryland, 4 Wheat., 316; Osborn v. Bank of the United States, 9 Wheat., 
738; Weston v. Charleston, 2 Pet., 449; Dobbins v. Commissionere, 16 Pet., 435; Bank 
of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall., 200.) Most 
of these cases related to the taxation of instrumentalities adopted by the United 
States for the proper execution of the powers vested in the Federal Government. 
The principle has been specifically applied to the taxation of the property of the 
United States (9 Op. Atty. Gen., 291), has been acquiesced in by the courts of all the 
States in which the question has arisen (Andrews v. Auditor, 28 Grattan, 115; Chi- 
cago, etc.. Railway Co. v. City of Davenport, 51 Iowa, 451), and has also been 
specifically applied to assessments for public works from which specific benefits would 
be derived (Fagan-D. Chicago, 84 111., 227)." See also IF Comp. Dec. 1, 16. Ithasbeen 
the policy of Congress to refuse appropriations for such assessments. C. 22781, Feb. 
24, 1908; 26768, May SI, 1910; 28164, Apr. 21, 1911. But, of course, where a sidewalk 
or other improvement adjacent to Government property is reasonably necessary for 
the proper use or improvement of such property, it may be constructed out of any 
appropriation applicable thereto. 

^ See IX Comp. Dec, 181, to same effect. 

^ See XI Comp. Dec, 629, to same effect. 

* See remark of Comptroller in XI Comp. Dec, 630, last sentence oa page. 

« See XIV Comp. Dec, 256. ^ 



TAX III K. 1025 

that the instrumentahties and agencies of such Government are 
exempt from local taxation; and that, therefore, the claim could not 
legally be paid, but that if the inspection provided for by the statutes 
of Hawaii were valuable to the United States it would be proper for 
the United States to enter into a contract with the proper Hawaiian 
authorities for such inspection and to pay therefor a sum equal to the 
statutory fee. C. 5554, P^c. SO, 1898; 18351, July 28, 1905. So, 
where the city of Manila imposed an inspection tax of 50 cents on 
each horse landed from any vessel and it was attempted to collect 
the tax on private horses of Army officers arriving on transports 
from the Umted States, the horses being of a class for which forage 
was furnished at the expense of the Government, Jield, that reim- 
bursement could not be made to officers for payment of such charges. 
0. 5554, Dec. 31, 1909; Jan. 6, 1910. So, lield, where a claim was 
made by a State veterinarian for the statutory fee for inspecting 
and administering the mallein treatment to public horses of the 
United States. C. 6554, Oct. 22, 1910. So held, also, where the city 
of Manila claimed a fee for the inspection by the city engineer of the 
boilers in pubHc buildings and vessels of the United States. C. 5554, 
Dec. 3, 1909; 19212, Feb. 17, 1906. So, Uld, where the city of 
Manila claimed the right to inspect all electrical installations for 
lighting purposes on a mihtary reservation and to charge fees for the 
same. C. 21469, Apr. 24, 1907. 

Ill K. Where the State authorities at Newport News attempted 
to charge against an Army transport the fee fixed by State laws for 
quarantine inspection and harbor regulation, hetd that such a 
cnarge would constitute a tax on an instrumentality of the United 
States and could not be imposed. As under its police power a 
State could legally establish quarantine and port regulations, a trans- 
port entering a harbor should submit to such inspection and obey 
such regulations, but no charge could be imposed for such services, 
as such a charge would be in the nature of an impost. However, if 
the inspection and port regulations are valuable to the United States, 
it would be proper to enter into a contract "with the proper State 
authorities whereby the State authorities would render such service 
and the United States would pay therefor an amount equal to the 
statutory fee. C. 20564, Oct. 27, 1906, and Nov. 13, 1906. So, 
where an attempt was made to charge against an Army transport 
entering the harbor of Habana a fee of S5 required by a Cuban 
statute for inspection services, at a time when Cuba was under 
militarv occupation by United States troops, held that whatever 
might DC the character of the government established by the United 
States in Cuba, it was clear that such government, together ^vith 
the United States military forces and the agencies and instrumen- 
talities which accompanied them, was independent of the constitu- 
tion and laws of the Repubhc of Cuba, and not subject to their 
operation. But held, further, that the public vessels of the United 
States arriving in Cuba are not exempt from supervision, and that 
it would be proper for the Governor General to call upon the com- 
manding officer of the occupj^ing forces to require Army transports 
to provide themselves with bills of health at their respective ports 
of origin, and for the Governor General to require them to submit 
to such inspection in Cuban ports as might be necessary to prevent 
93673°— 17 66 



1026 TAX III L. 

the introduction of disease. Such requirements would, however, 
be by the authority of the United States and not by that of the 
Government of Cuba, and no fee should be charged for such inspec- 
tion. 0.20564, Nov. 21, 1906. 

Ill L. Where the State authorities at Little Rock, Ark., put in a 
claim for 177 health certificates at 50 cents each issued to soldiers 
transported through that city to Memphis, Tenn., claiming that it 
was necessary for the troops to have these certificates because Mem- 
phis was at that time quarantined against Little Rock, Jield that the 
police power of a State in the matter of quarantine can not be exer- 
cised so as to interfere with a movement of United States troops, 
since it is not competent for a State to fetter the operations of the 
United States in this way, and therefore such claim is not a proper 
charge against the United States and can not be paid out of the 
appropriation for the contingencies of the Army. U. 6339, May 1, 
1899. 

Ill M. Held that an officer of the Army, duly charged with the duty 
of making a sale of damaged, etc., medical supplies under the authority 
of section 1241, R. S,, by which the President is empowered to order 
such sales in certain cases, could not lawfully be required to take out 
and pay for a license as a merchant under the laws of the State in 
which the sale was to be made. Such a requirement would be a 
restriction upon the regular and legal execution of the powers of the 
General Government, and therefore beyond the authority of a State. 
R. 39, 6, May 8, 1876. 

Ill N. A State can not legally impose a license fee on a Govern- 
ment automobile used in the service of the United States. 0. 25127, 
July 25, 1909, June 13, 1909, Nov. 6, 1909, Dec. 5, 1910, and Oct. 26, 
1911. 

Ill O. The District of Columbia can not impose a license fee on a 
Government vehicle used in the service of the United States.^ O. 
28165, Apr. 24, 1911. 

III P. A post exchange is not legally liable for local or municipal 
taxes or licenses, on the sale of commodities for the exclusive use of 
persons in the military service, as such exchange is an instrumentality 
of the Government of the United States.^ 0. 7324, Nov. 21, 1899. 

IV A. A Territorial law provided that every male inhabitant of the 
Territory should be liable to pay a school tax and that any person, 
company, or corporation having in his or their employ any person 
liable to pay such school tax should, on demand by the school-tax 
collector, furnish a list of the names of such persons and pay the tax 
for them. Held that under the above law a quartermaster at a post 
in that Territory could not act as agent for the Territory in the col- 
lection of its taxes by withholding from a contractor or employee any 
money that might be due him for the purpose of paying school tax. 
0. 23343, June 6, 1908, and June 9, 1909. 

IV B. Where a Territorial law provided for the posting of notices 
of school tax, held that a notice of such tax could legally be posted on 
a mihtaiy reservation in the Territory so. long as it did not interfere 
with military administration. O. 23343, June 6, 1908, and June 9, 
1909. 

1 See XV Comp. Dec, 231, to the same effect. 

2 See Dugan v. U. S., 34 Ct. Cls., 458. 



TAX — TERKITORIES : SYNOPSIS. 1027 

CROSS REFERENCE. 

Commanding officers' duty See Army I B 11. 

Military government See War I C 6 f (1) ; 8 a (2) (c) [1.] 

Military reservation See Public property V E 1 a. 

Retired officer See Retirement I G 2 e. 

Road tax See Civilian employees III A. 

TELEGRAM. 

See Communications III A. 

Appropriations for See Appropriations XXVI. 

As evidence See Discipline XI A 17 b (2) (a). 

By militia See Militia XIV B. 

Commercial See Territories III D to E. 

Post exchanges See Government agencies IIJ 6. 

TELEGRAPH LINES. 
Maintenance See Appropriations LVI. 

TELEPHONE CALLS. 

See Appropriations XXVI. 
Hospitals See Appropriations XLIII. 

TENURE OF OFFICE. 

Army See Office III G. 

Volunteers See Volunteer Army I B. 

TERM OF ENLISTMENT. 

See Enlistment I B 2 to 3. 

Medal for serving beyond See Insignia of merit I E 2. 

Paid for serving beyond See Pay and allowances I A 1 a. 

Retention of sick soldier See Enlistment I B 2 i. 

Retention of Volunteers in service after See Volunteer Army IV C to D. 
organization mustered out. 

TERRITORIES. 

I. STATUTES OF. 

A. Operative on Reservations Unless in Conflict with United Statf*" 

Laws or Regulations . . , Page 1028 

B. Can Not Tax Government Instrumentality. 
n. COURTS OF. 

A. Military Must Obey Subpcbnas. 
m. ALASKA. 

A. Citizenship in LTnited States, How Obtained There. 

B. Use of Troops as a Posse Comitatus Page 1029 

C. Coal May be Sold to Civilians for Humane Reasons. 

D. Commercial Telegraph Business. 

1. Accepted for cash paid in advance. 

2. Not privileged. 

E. Military Authorities Can Not Issue Permits for Introduction oy 

Liquor into Alaska. 

F. Alaskan Road Commission. 

1. Authority of. 

G. Civil Employees of United States. 

1. May be required to work on roads , Page 1030 



1028 TERRITORIES I A. 

IV. PHILIPPINE ISLANDS. 

A. Use of Regular Troops. {See Army II to III.) 

B. Constabulary. 

1. Force of peace officers. 

2. Status of Army officers who hold office in constabulary, 

a. May not assume command of transport by virtue of increased 

rank Page 1031 

(1) But entitled to quarters, etc., in accordance with 
increased rank. 
V. PANAMA CANAL ZONE. 

A. United States Responsible for Order. 

I A. A Territorial statute is operative upon a military reservation 
within the Territory so long as it does not conflict with the laws of 
the United States or with the military administration or legitimate 
operations of the Government. Thus, Tield that a statute of Arizona 
making it penal to seU intoxicating liquor to Indians, while it would 
inhibit a post canteen from selling beer (if intoxicating) to Indians 
in general, could not legally affect the sale of such beer (at a time 
when the sale of beer to soldiers was permitted) to Indians who 
were enlisted soldiers of the United States, and therefore within the 
regulations of the Army allowing such sale to soldiers under certain 
conditions.^ P. 48, 464, Aug., 1891; 51, 199, Jan., 1892; C. 11357, 
Oct 10, 1901; 12700, June 2, 1902; 14335, Mar. 20, 1903; 18063, 
Sept. 6, 1905; 21469, Apr. 24, 1907. 

I B. It is well settled that the government of a Territory or terri- 
torial possession of the United States can not, unaided by legislation, 
impose a tax upon an instrumentality of the United States.^ 

Where the service rendered by an agency of a Territorial or insular 
government is necessary, recommended that it be placed upon a con- 
tractual basis, the coropensation not to exceed in any case the rates 
established by law. C. 21469, Apr. 24, 1907. 

II A. The military should obey the subpoenas of the district courts 
of Territories, which, under section 1910, K. S., are vested, in all 
cases arising under the Constitution and laws of the United States, 
with the same jurisdiction as the United States circuit and district 
courts. Sections 877 and 911, R. S., prescribe as to the form and 
effect of such subpoenas, and where a subpoena served upon an officer 
or soldier conforms substantially with these forms it should be com- 
plied with. R. 54, 124, July, 1887;^ C. 21469, Apr. 24, 1907. 

III A. By the treaty of cession with Russia subjects of that nation 
inhabiting the Territory of Alaska at the date of the treaty and con- 
tinuing to remain such inhabitants for three years became thereupon 
American citizens. But the treaty neither mentions nor refers to 
British subjects or the subjects of any foreign nation other than Rus- 
sia; such persons, therefore, residing in the Territory can become citi- 
zens only m the mode and form prescribed by the United States natu- 
rahzation laws. R. 38, 555, Apr. 12, 1877. 

1 See U. S. V. Hurshman (53 Fed. Rep., 543), in which it was held that an Indian 
of the Nez Perces tribe, a soldier in the United States Army, was an Indian under 
the charge of an Indian superintendent or agent within the meaning of sec. 2139, 
R. S., which provides that every person who disposes of spirituous liquors to any 
Indian "under the charge of any Indian superintendent or agent * * * shall be 
punishable * * *." 

» II Comp. Decs., 375; 4 id., 116. 



TERRITORIES III B. 1029 

III B. The "posse comitatus act" of June 18, 1878 (20 Stat. 152), 
is, by section 29, act of June 6, 1900 (31 Stat. 330), made inoperative 
in Alaska. 0.8119, Apr. 17, 1897; Apr. 1, 1907. As the United 
States marshal is by statute made the judge of the necessity of using 
military force in Alaska (act of Mar. 3, 1899, 30 Stat. 1324), the 
comm-anding officer of military forces in that Territory should 
assist the marshal in maintaining order, but such order should pass 
to the local commanding officer, who, with the forces under his com- 
mand and acting under his orders, should carry the views of the 
marshal into effect. C. 3119, Feb. 13, 1908. It is for the marshal 
to determine when the emergency exists which necessitates the 
employment of military force; and it is for the commanding officer 
of the troops to direct their employment for the accomplishment of 
the purposes so indicated. C. 3119, Feb. 13, 1908. 

Ill C. Where it is necessary, by reason of emergency and on 
account of the overruling demands of humanity, to sell small amounts 
of coal to civilians in Alaska, when the supply for military purposes 
is in excess, held that such sales may be made at net cost, delivered 
at place of sale, but that such sales should be reported to Congress at 
its next meeting. C. 19307, Mar. 2 and Oct. 13, 1906. 

Ill D 1. Wlme a discretion is vested in the Secretary of War by 
the act of May 26, 1900 (31 Stat. 206), in the matter of allowing com- 
mercial telegraph business to be done on credit, held that the present 
regulations do not authorize credit messages, and that, until new 
regulations are published authorizing such credit, business over the 
Alaskan telegraph lines should be conducted on a cash basis. 0. 
20409, Sept. 21, 1906. 

Ill D 2. Authority was requested by the United States marshal in 
Alaska to examine telegrams sent over the Alaskan telegraph lines 
by parties suspected of robbery; held, to be lawful upon request of 
the proper court or civil authority, as such telegrams are not privi- 
leged. O. 20085, July 19, 1906. 

Ill E. In view of the terms of the act of May 17, 1884 (23 Stat. 24), 
estabhshing a civil government for Alaska, held that the mihtary 
authorities could no longer legally issue permits for the introduction 
of hquors into Alaska under General Oraer 57 of 1874, section 14 of 
said act being deemed impliedly to repeal, as to Alaska, that portion 
of section 2139, R. S., which empowered the Secretary of War to 
authorize such introduction.^ R. 50, 529, July, 1886. 

Ill F 1 . Held to be within the authority of the Alaskan road com- 
mission to construct a wooden tramway over portions of roads and 
trails where that form of road will best subserve the purposes of 
traffic. 0. 18173, June 15, 1905. 

The Alaskan road commission asked authority to transfer a certain 
horse, purchased out of Army appropriations, to the list of property 
purchased out of tax funds; held that such transfer would not be law- 
ful. 0. 18173, Aug. 2, 1907. 

Authority was requested to purchase the right of way of the Copper 
River & Northwestern Railway Co. as part of the road which the 
commission was authorized to construct. Held, that such a convey- 
ance in the operation of a license from the railroad company for a 
period of five years, at the expiration of which the roadway was to be 

» See U. S. V. Nelson, 29 Fed. Rep., 202. 



1030 TEERITORIES III G 1. 

restored to the licensor, would be within the authority of the commis- 
sion. C. 18173, Apr. 10, 1908. 

III G 1. Where certain civihan employees of the United States 
were required to perform labor on roads in Alaska, in the operation of 
the act of April 27, 1904 (33 Stat. 391), held that the War Depart- 
ment is without the power to excuse compliance, but that the em- 
ployee should present his claim for exemption to the proper precinct 
autnofities, accompanied by a certificate showing the character of his 
employment, and that his entire services are necessary in the admin- 
istration of the regiment, post, or depot at which he is employed by 
the United States. C. 20327, Mar. U, Sept. 24, and Oct. 1, 1910. 

IV B 1. The Philippine Constabulary is a force of peace officers 
created by an act of the Pliilippine Commission in virtue of its power 
to legislate in matters affecting the PhiUppine Islands. The duties of 
the officers and men composing the constabulary are prescribed by 
law and chiefly relate to the maintenance of public order and the 
enforcement of the laws. When resistance to such enforcement is 
encountered or when the peace of the islands is threatened, it is made 
their duty to overcome such opposition and to restore civil order, 
using such and so much force as is necessary for that purpose. 0. 
17508, Feh. 15, 1905. 

IV B 2. The status of the Philippine Constabulary and the oflicers 
of the Army who are by law permitted to hold civil office in that body 
was made the subject of an expression of opinion by this office, under 
date of April 8, 1904, in which it was said, with the approval of the 
Secretary of War, that "The Philippine Constabulary is a force of 
peace officers created by an act of the Philippine Commission, in 
virtue of its power to legislate in matters affecting the Philippine 
Islands. The duties of the officers and men composing the constabu- 
lary are prescribed by law and chiefly relate to the maintenance of 
public order and the enforcement of the laws. When resistance to 
such enforcement is encountered or when the peace of the islands is 
threatened, it is made their duty to overcome such opposition and to 
restore civil order, using such and so much force as is necessary for 
that purpose. " C. 17508, Feh. 15, 1905. And ''The of)eration of the 
act of January 30, 1903 (32 Stat. 783), has been to vest in certain offi- 
cers of the Philippine Constabulary the same power of military com- 
mand over companies of the Philippine Scouts, which are ordered to 
assist the constabulary in the mamtenance of order, as is habitually 
exercised by the officers of the fine of the Army over the commands to 
which they have been assigned by the President, or by mihtary supe- 
riors deriving their authority from the President. The control of the 
Chief of the Philippine Constabulary over his subordinates in that 
service is derived from the legislation of the PhiUppine Commission 
and from the orders of the civil governor, conveyed to such chief 
either directly or through the secretary of commerce and pohce; and 
his authority over such companies of Philippine Scouts as are em- 
ployed, in support of the constabulary, in the maintenance of order is 
a strictly mihtary command and is derived from the act of January 30, 
1903, which obviously has application to cases in which the disturb- 
ance is so Hmited and locahzed that order can be restored by the em- 
ployment of the civil agencies provided for that purpose with the 
assistance of a detachment of Philippine Scouts; in other words, the 
extent and amount of the disorder is known to the civil governor, who 



I 



TERRITORIES THE ADJUTANT GENERAL. 1031 

has ground for the beUef that the constabulary force, with the assist- 
ance of one or more companies of scouts, can restore order or secure 
the execution of the laws in the disturbed locality without formally 
calling upon the military commander for the employment of troops 
in the method prescribed in the President's proclamation of July 3, 
1902." C. 17508, Feb. 15, 1905. 

IV B 2 a. Where an officer of the Philippine Constabulaiy, having 
the rank of colonel and assistant chief of constabulary, was prosecut- 
ing a voyage to Manila on an. Army transport, held that he was not 
entitled to command the troops on board in the operation of the 
one hundred and twenty-second article of war — his power to com- 
mand being restricted in the operation of the act of January 30, 1903 
(32 Stat, 783), to the command of Phihppine troops in certain con- 
ditions of emergency. C. 17508, Feb. 15, 1906. 

IV B 2 a (1). The rank of colonel, which has been conferred upon 
an Army officer as assistant chief of the PhiHppine Constabulary, 
entitles the officer upon whom it has been conferred to the same 
precedence, dignities, and privileges to wliich a colonel in the line or 
staff of the Army is entitled by law, regulations, or the orders of the 
War Department; and he is also entitled to the same consideration in 
the assignment of stateroom accommodations upon an Army trans- 
port to which a colonel of the hne or staff would be entitled under 
the same circumstances. C. 17508, Feb. 15, 1905. 

V A. It is the duty of the State of Panama to maintain public order 
within its territory, and in the execution of that duty it may enact 
and enforce such laws as are calculated to attain that end. It is 
assumed that such a body of laws and regulations exists in the State, 
and that their due and proper enforcement will suffice to maintain 
pubhc order. If those laws are set at defiance, or if their execution 
IS hindered or prevented by any persons, or combinations of persons, 
and the existence of that fact has been determined to the satisfaction 
of the President, then it becomes his duty to remove such hindrances 
and to take such steps as are, in his opinion, necessary to give such 
full and unimpeded operation to the laws as wiU restore and secure 
the maintenance of civil order within the territorial limits to which 
his jurisdiction under the treaty extends. 

It is also the opinion of this office that the President can give such 
directions to the Secretary of War as in his judgment are necessary to 
secure due execution of the treaty, and that the Secretary of War, 
by the issue of appropriate instructions in the name of the President 
to the commanding officer of the forces stationed in the Canal Zone, 
can cause such steps to be taken as will be calculated to remove or 
overcome the obstacles to the execution of the laws, and thus secure 
the restoration of pubhc order within the hmits of such zone, and 
in the cities of Colon and Panama and the territories adjacent thereto. 
a 17164, Nov. 15, 1904. 

CROSS REFERENCES. 

Hawaii See Militia X D. 

Laws of, on military reservations See Public property V H 2 to 3. 

School tax See Tax IV B. 

THE ADJUTANT GENERAL. 

Chief of corps See Insi«nia op merit II H 1. 

Cv^todian of records See Volunteer Army IV H 1. 

Duties of See Army I G 3 a (2). 

Pay and allowances I C 2. 



1032 THEATER TICKETS — -TRANSFER OF OFFICERS. 

THEATER TICKET. 

Owned and used by soldiers See Uniform I B 2 to 3. 

THE NATIONAL MATCH. 

See Militia VI C 2 c. 
Transportation of teams See Militia VII D. 

TICKETS. 

Streetcar See Army I G3b (2) (a) [1]. 

Theater See Uniform I B 2 to 3. 

TIME OF PEACE. 

Enlistments in See Enlistment I C to D . 

Punishment in See Discipline XII B 1 a. 

TIME OF WAR. 

Boxer uprising See Articles of War CIII F 2 a. 

Department commander as reviewing au- See Articles of War C VI A. 
thority. 

Deserter's release See Desertion XVII E. 

Desertion See Articles of War CIII F 2. 

Desertion V F; X B; XVIII A; B. 

Extra duty See Pay and allowances I C 6 c to e. 

Judicial notice See Discipline II D 15 a. 

Mitigation during See Articles op War CXII A 1 a (1). 

Offense in See Discipline XIV E 9 a (13). 

Philippines See Articles of War LXXIII A 2. 

Under fifty-ninth article of war See Articles of War LIX I 1. 

TITLE. 

Against United States See Public property II B 3 to 4. 

Attorney General approves See Public property II A 6 to 7. 

Balloon found See Public property I A 6. 

Captured property See War I C 6 c (3) . 

Joint See Public property II A 5. 

Occupied property See War I C 6 a (2) . 

Officers' pay See Pay and allowances III C 1 a (1) 

(«) [2]. 

Payment for abstract of See Appropriations XV. 

Public movable property See War I D 1 . 

Soldiers' pay See Pay and allowances I C 1; 1 a (1) 

(a) [2]. 
Submerged land See Navigable waters II to III. 

TOLL. 

Navigable waters See Navigable waters I A 1 a. 

TORTS OF GOVERNMENT AGENTS. 

See Militia VI B 2 n. 
United States not responsible for See Claims IV; VII B 2; C 1. 

TRADEMARK. 

Can not include flag See Flag II. 

TRANSFER OF OFFICERS. 

See Office III C to D; D 4. 



TRANSFER OF SOLDIERS— TREES. 1033 

TRANSFER OF SOLDIERS. 

Volunteers to Regular Army See Volunteer Army III B 1. 

TRANSPORT. 

See Army I G 3 b (2) (a) [3] to [4]. 

Crew See Civilian employees V A; XV A. 

End of voyage See Absence I B 1 i. 

Loss of mail on See Claims XII K. 

Quarantine inspection and harbor regulation. See Tax III K. 

Service in Philippine Islands See Retirement II A 4 b (2). 

Summary court See Discipline XVI E 6. 

TRANSPORTATION. 

I 

See Army I G 3 b (2) (a) to (6). 

Appropriations XX. 

Civilian employees IX to X. 

Allies See Claims VII B 6. 

Automobile See Militia VI B 2 f. 

Borrowing from allies See War I C 6 d (1 ). 

Deserter See Desertion V D 3 to E 6. 

Dock, repair of See Appropriations LII. 

Insane soldier See Insanity I B 1. 

Militia See Militia VI B 2 e ; VII to VIII. 

Mustered out volunteers See Volunteer Army IV B 4. 

Recruit See Desertion XXII A. 

Retired officer See Retirement I N 4 ; Q. 

Retired soldier See Retirement II B 7. 

Seizure See War I C 6 b (1) (b). 

Soldiers See Absence I C 4 e (1); 4 h. 

Soldiers' Home I E. 
Under fifty-ninth article of war See Article op War LIX G 1 a; 1 b. 

TRANSPORT COMMANDER. 

Authority See Command V B 1. 

Discipline See Command V B 2 a; b; c; V B 3. 

Eligibility for See Command V B 4. 

Articles op War CXXII A. 
Summary court See Discipline XVI E 6. 

TRANSPORT QUARTERMASTER. 

Eligibility to command See Command V B 4. 

TRAVEL ALLOWANCE. 

Discharge without honor See Army I G 3 b (2) (a) [3] [a]. 

Forfeiture of See Pay and allowances III C 1 f ; 2 c 

tod. 

TREATY. 

China and United States See Army V A 

Cuba and United States See War I C 8 c (1) to (2). 

Effect on military government See War I C 8 b. 

Peace, ratification ends ivar See War I F 2. 

Pea£e rule as to movable property See War I D 1. 

TREES. 
Title to See Public property II F to G. 



1034 TRESPASS — UNIFORM I A 1. 

TRESPASS. 

Ejection by owner See Navigable waters X D 4. 

TROOPS. 

Right to salvage See Claims VI D. 

TRUST. 

Debts paid by bailee See Private debts VIII. 

Money See Discipline XII B 3 e (3). 

Property held in, lost See Public property I F 2. 

Soldier's pay See Pay and allowances ICl; IIIB6. 

TWICE IN JEOPARDY. 

See Articles op war CII A to I. 

See Discipline XII B 1 a (1) (6). 

At oivn request See Discipline XIV K 1. 

Previous trial null See Discharge XVI G; G 2. 

TYPEWRITING MACHINES. 

Issu£ to militia See Militia XVI I 3. 

UNAUTHORIZED FORCES. 

See Militia IV to V. 

UNCONDITIONAL CONTRACT. 

Difficulty in performing See Contracts X B. 

UNIFORM. 

I. Protection of dignity. 

A. Within United States Jurisdiction. 

1. Soldier excluded from skating rink Page 1034 

B. Within State Jurisdiction. 

1. If laws permit. 

a. Prosecution by commanding officer Page 1035 

2. Right of ticket holder. 

a. Theater ticket defined. 

C. Prosecution for Criminal Impersonation of an Officer. 

I A 1 . Held that the exclusion of soldiers from a skating rink in a 
Territory because they were in uniform was a violation of the act of 
Marcli 1, 1911 (36 Stat. 963), for the protection of the dignity and 
honor of the uniform of the United States.^ C. 18958, Bee. 7, 1911. 

^ The proprietor was tried and convicted for the offense in the United States District 
Court of the Fourth Judicial District of the Territory of Arizona and punished. 

The indictment in this case reads as follows: 

"Did knowingly, wrongfully, willfully, and unlawfully discriminate against one 
D. K. M — , jr., he, the said D. K. M — , jr., then and there lawfully wearing the 
uniform of the Army of the United States of America, they, the said defendants, being 
then and there the proprietors of a public place of amusement, to wit, a skating rink, 
by then and there refusing to permit him, the said D. K. M — , jr., to skate at said 
skating rink because of said uniform so worn as aforesaid by said D. K. M — , jr." 



UNIFORM — U. S. MILITABY ACADEMY. 1035 

1 6 1 a. The proprietor of a skating rink attempted to exclude 
soldiers because they were in uniform. Held that the commanding 
officer pursued the proper course in instituting a prosecution against 
the proprietor for a violation of the laws of the State. C. 18958, 
Jan. 23, 1907. 

I B 2. Held that the rights of persons to purchase tickets to a 
place of amusement or the rights of ticket holders to enter a place of 
amusement for which they hold tickets is one which turns entirely 
on the laws of the various States. C. 18958, Nov. 28, 1906. 

I B 2 a. A theater ticket is a license which may be revoked by the 
licensor, before it has been tendered at the door of the theater.* 
Held, however, that the purchaser of a particular seat has more than 
a license his right of entrance being in the nature of a lease,^ and his 
right is affected in no way by the fact that he may be a soldier in 
uniform. C. 18958, Dec. 14, 1905. 

1 C. Held that when it appears that any person with intent to 
defraud either the United States or any person falsely assumes^ or 
pretends to be an officer or employee, by tne wearing of a uniform or 
otherwise, the case should be referred to the Department of Justice 
for prosecution under the act of April 18, 1884 (23 Stat. 11). C. 
U779, June 26, 1906, Aug. 28, 1906, Oct. 13, 1906, Dec. 23, 1907, 
Feb. 4, 1908, Apr. 29, 1908, May 2, 1908, and Aug. 14, 1909. 

CROSS REFERENCE. 

Campaign badges, part of See Insignia op Merit III B 1. 

Militia XIII B. 

Furlough See Absence I C 4 c. 

Militia See Militia XIII to XIV; XVI F. 

Offenses while in See articles of War LXII C 5 a; LXII 

C16. 

Possession of by civilian See Command V A 3 e. 

President prescribes See Pay and Allowances II A 3 a (4) (d) 

[1] [«]• 

Retired officer See Retirement I F. 

Wearing of unauthorized badges on See Insignia of merit II A 2 a; b. 

UNION LABOR. 

Competition with See Army bands I A 5. 

U. S. COMMISSIONER. 

Con not discharge soldier See Discharge XVI D 1. .' 

Turning offenders over to See Command V A 3 c (1). 

U. S. MILITARY ACADEMY. 

See Army I D to E. 
Authority of superintendent See Command V A 3 d (1). 

' See McCrea v. Marsh (78 Mass., 211). 

2 See Drew v. Peer (93 Pa., 234). 

^ See U. S. V. Ballard (118 Fed. Rep., 757). Also an impostor who by impersonation 
of an officer through wearing a uniform was convicted in the western district of Penn- 
sylvania and sentenced to two years in the penitentiary. See C. 14779, Oct. 27, 1909, 
Judge Advocate General's office. 



1036 UNLIQUIDATED DAMAGES VOLUNTARY AEMY : SYNOPSIS. 

UNLIQUIDATED DAMAGES. 

Claim for See Claims II. 

USEIESS PAPERS. 

Destmciion. of. See Official papers I C 1 a. 

VACATION OF OFFICE. 

Active list See Office IV to V. 

Retired list See Retirement I G 2 f . 

Volunteers See Office V A 7. 

VARIANCE. 

Acceptance and bid See Contracts VI M. 

Advertisement and bid See Contracts VI L. 

Charge and copy See Discipline V D 4. 

Charge and evidence See Discipline XIV E 4 c. 

Charge and sentence See Discipline XII B 3 c ; XIV E 9 a (3; 

Contract and requirements See Contracts X A. 

VESSEL. 

Foreign built See Contracts XX C 2. 

Wreck : See Claims II. 

VESTING OF OFFICE. 

See Office III A 6 to 7 ; B 3 to 4; V A 5 to 6, 

Detailed staff. See Office III D 1 to 2. 

Volunteas See Office V A 5 to 6. 

Volunteer Army II F 1 a (1). 

VESTING OF RIGHT OF WAY. 

See Public property VI A. 
VESTING OF TITLE. 

See Public property II A 6 e. 

VETERINARIAN. 

Appointment See Office III E 1. 

Eligibility for gratuity See Gratuity I B 3 b. 

Leave See Absence I B 1 g (2). 

Militia See Militia X E. 

VOLUNTARY SERVICE. 

See Contracts XL. 
VOLUNTEER ARMY. 

I. DEFINED AND DESCRIBED Page 1038 

A. Usual Meaning — Force Raised Independent of States... Page 1039 

B. Not a Part op the Militia Page IO4O 

C. Officers are Officers of United States. 

D. Soldiers are Enlisted into Service of United States. 
n. MUSTER IN. 

A. Previous to Civil War. 

1. Before mutter in under exclusive control of governor. 

2. Muster for pay not a muster in Page IO41 



VOLUNTARY ABMY : SYNOPSIS. 1037 

n. MUSTER IN— Continued. 

B. During Civil War. 

1. Enlisted men. 

a. Mustering recruits not a muster in. 

b. Enrollment not a muster in. 

c. Muster in without signing enlistment papers. 

d. ConstructiA^e muster. 

(1) Enrollment and acceptance of service. 

e. Consolidation of regiments Page 1042 

t. Drafted men. 

(1) Muster in not required. 

2. Militia. 

a. Muster in necessary to entry in the United States service. 
(1) Constructive. 

C. Spanish War Volunteers. 

1. Date of muster in determines date of entering the service. 

2. United States Volunteers not mustered in, but enlisted directly in 

service of United States. 

D. Muster-in Rolls. 

1 . Formal muster-in roll is official record Page 1043 

E. Irrevocable Unless Tainted with Fraud. 
■ F. Remuster. 

1. Not allowed for following reasons. 

a. Man never mustered in. 

(1) Even though commissioned. 

(2) State recruiting officer. 

b. Organization never existed. 

(1) Seventeenth New Hampshire Volunteers. 

(2) Pierrepont Rifles. 

(3) Quartermaster Volunteers, 1804. 

c. Office never existed Page 1044 

m. ORGANIZATION. 

A. Engineer Brigade. 

1. May have three regular officers, two engineers, and one other. 

B. Enlisted Force. 

1. May transfer to Regular Army. 

2. Cooks may be colored. 
IV. MUSTER OUT. 

A. Authority to Muster Out. 

1. War Department order has force of law. 

B. Is Termination of Military Service 

1. Of an organization as such. 

2. Of an officer Page 1045 

3. Of an enlisted man. 

4. Even if organization not disbanded until later. 

5. No discharge certificate required. 

C. Retention in Service After Organization Mustered Out. 

1. Authority to muster out can retain. 

a. Retained if military control exercised over him by competent 

authority. 

(1) As long as under such control. 

(2) Competent authority defined. 

(a) Under General Order 108, 1863. 

(6) Under General Order 13, 1899. . Page 1046 

b. Certain classes not retained, viz, deserters, absentees, absent 

sick, etc. 

c. Proper to retain men for trial. 



1038 VOLUNTEER ARMY I. 

IV. MUSTER OUT— Continued. 

D. Date of Muster Out. 

1. When not retained in service after muster out of organization. 

a. True date is actual date of muster out. 

(1) Regardless of date fixed in advance or entered in dis- 

charge certificate or date of payment. 

(2) Date fixed in advance. 

(a) Executively. 
(6) Legislatively. 

[1] Act provides ' ' that volunteer force continue 
in service not later than July 1, 1901, " is 

mandatory Page 1047 

[2] Act provides "that bands shall be mustered 
out within thirty days after passage of the 
act," is directory. 

(3) Term of service expires before organization mustered 

out — notice fixes date of muster out. 

(4) Absentees. 

(a) General rule — same date as date of muster out 

of organization. 
(6) Without leave. 
(c) Prisoners of war. 

(5) Men not subject to muster out as already out of service. 

(a) Offic?r because office abolished. 

(6) Enlist«d man dropped as a deserter. . . Page 1048 

2. When retained in service after muster out. 

a. Date is date of notice. 

(1) Officer ordered home for discharge. 

(2) Ordered to report to mustering officer for discharge. 

(3) Rule — if after being retained he withdraws himself 

from service. 

3. Date can not be changed. 

a. Muster out can not be nunc pro tunc. 

b. Even if officer was retained for trial Page 1049 

c. The record of muster out can not be changed. 

E. Rank at Muster Out. 

F. If liEGAL, Irrevocable. 

G. If Illegal, Revocable. 

1. Secured by fraud. 

a. Government may ignore or revoke muster out. 
H. Records op Organizations. 

1. Deposited in War Department. 

2. Finding of board as to service of officer being "honest and faithful" 

at discharge Page 1050 

I. The term ''Volunteer Army" (as comprehensively used) means 
that temporary military organization or body of men which the 
Government usually employs and maintains in the military service 
m time of war or other public danger. It is made up of (1) persons 
who voluntarily make their engagements directly with the United 
States to serve; (2) persons who are conscripted directly by the 
United States and forced to serve; (3) persons who voluntarily 
engage with a State to serve in a State mUitia organization, and are 
(together with that organization) called into the United States 



VOLUNTEER ARMY I A. 1039 

service as State militia by the President ; (4) persons who are drafted 
by a State and forced into a State militia organization, and are 
(together with that organization) called into the United States 
service as State militia by the President. Those who make volunteer 
engagements directly with the United States to serve, and those who 
are conscripted directly by the United States and forced to serve, 
constitute organizations which (as well as the Regular Army) are 
called into existence by Congress under its constitutional power, "to 
raise and support armies." The State organizations are made a part 
of the Army of the United States under authority of a different pro- 
vision of the Constitution, which provides for "calling forth the militia 
to execute the laws of the Union, suppress insurrection, and repel 
invasion." These organizations are usually formed (either by 
volunteer engagement on the part of the men or by conscription by 
the State authorities) to serve the State but the President can call 
them from the service of the State into the service of the United 
States. And sometimes the State organizations are formed (either 
by volunteer engagement on the part of the men or by conscription 
by the State authorities) with the purpose in view of their being 
transferred to the service of the United States (under the call of the 
President) as soon as the organizations are formed. But under all of 
these circumstances these militia organizations retain their character 
of State militia, and yet are at the same time (while in the active 
service of the United States under a call of the President) a part of 
the Army of the United Statss, and for general purposes, are con- 
sidered as belonging to that branch of the United States Army known 
as the "Volunteer Army, "^ and this, notwithstanding the men may 
have been conscripted and forced into the State militia organization 
by the State (to serve the State or to be transferred into the service 
of the United States), and then called into the service of the United 
States against their will and under their protest. After State militia- 
men, called into the United States service by the President, once get 
into that service, no distinction is made between the two classes on 
accovmt of the manner in which the State got them into its organiza- 
tion — whether by volunteer engagement or by conscription. All of 
them are designated as militia called into the service of the United 
States. C. 1301, May, 1895; 2U06, Apr. 19, 1907. 

I A. The term "volunteers" is, however, usually applied to soldiers 
of a temporary United States Army — an army raised and organized 
and supported and maintained for a limited period by the United 
States mdependently of any State. ^ This kind of an army the Presi- 
dent can not raise and maintain at any time without express authority 
of Congress. He has a general authority given him by Congress to 
call the militia of the States into the United States service whenever 
it becomes necessary for the purposes mentioned in the statute. But 
he has not such an authority to engage or employ what are usually 
called "Volunteers." It follows, therefore, that evidences that they 
were "called into service" by the President are not so important in 

' Compare the provisions relating to organization of the "Volunteer Army," in the 
act of Apr. 22, 1898, and see V Comp. Dec, 25. 

2 For instances of such "Volunteers," see act of May 11, 1898, to provide for a 
volunteer brigade of engineers, and an additional force of ten thousand men specially 
accustomed to tropical climates; also sec. 12 of the act of Mar. 2, 1899, for increasing 
the efficiency of the Army and for other purposes. 



1040 VOLUNTEER ARMY I B. 

the case of Volunteers as they are in the case of militia. If it be 
found that Volunteers actually performed service at a time when an 
act of Congress authorized them to be raised and maintained land 
employed, their status is usually determined to be that of Volunteers. 
But if there be no statute which authorized them to be raised and 
maintained and employed at that time, or authorized their recognition 
since, their claim to a status as Volunteers, rather than militia called 
into the service of the United States, must fall, no matter how often 
they were paid as such or how much or how long they have been 
recognized by the executive branch of the Government. C. 1377, 
May, 1895; 17678, Mar. 10, 1905. 

I B. The Volunteer force during the Civil War was not apart of the 
militia, but of the Army of the United States. _ Though assimilated to 
the militia in some respects, as, for example, in the mode of original 
appointment of regimental and company officers, it was as distinct in 
law from the militia as was the so-called "Regular" contingent of the 
Army.* Volunteer officers, once mustered mto the service of the 
United States, and while they remained in that service, did not differ 
substantially from Regular officers in their status, rights, or other- 
wise. Their tenure of office was indeed briefer; this, however, was 
not a material legal distinction, since the term of Regular officers was 
also in some cases limited by statute to a definite period — as the 
duration of the existing war. R. 34, 4^9, Sept., 1873. 

I C. Held, that all the officers of the Volunteer Army are officers 
of the United States. C. 6075, Sept. 28, 1898. 

I D. Held, that, under the law relating to the raising of a Volunteer 
Army, recruits are mustered directly into the service of the United 
States. C. 4631, July 22, 1898. ^ 

II A 1. The practice of receiving volunteer organizations into the 
mihtary service through the operation of "muster in" was well estab- 
lished at the outbreak of hostilities in 1861. Volunteer forces had 
been employed in Indian hostilities upon several occasions prior to 
1846, and a number of volunteer regiments, raised and tendered by 
the States, were received into the mihtary service during the War 
with Mexico. Held that no regiment, company, or other organiza- 
tion of Volunteers could, under the law and regulations which con- 
trolled muster in, be regarded as having been "accepted" or received 
into the military service of the United States until it had been form- 
ally mustered into such ser\'ice by a commissioned officer of the Army, 
duly authorized thereto by the Secretary of War. Held, further, that 
previous to such muster in such persons as had enrolled themselves, 
or otherwise indicated their intention to enter the volunteer service 
continued subject to the exclusive jurisdiction and control of the 
governors of their respective States. By undergoing the process 
of "muster in" such organizations of Volunteers were "accepted" 
into the military service of the United States and passed out of State 
control and into the exclusive control and jurisdiction of the United 
States as part of its volunteer forces. Over regiments and other 
commands, while in process of recruitment and organization, the 

' As illustrating the distinction made in sec. 8, Art. I, of the Constitution, between 
the Army and militia, and indicating the status of the Volunteers, during the Civil 
War, as a part of the former, see Kerr v. Jones, 19 Ind., 351; Wantlan v. White, id., 
471; In the matter of Kimball, 9 Law Rep., 503; Burroughs v. Peyton, 16 Grat., 
483, 485. 



VOLUNTEER ARMY II A 2. 1041 

jurisdiction of the several States was plenary, but it ceased to be 
exercised, save as to the appointment of commissioned officers to 
vacancies in completed organizations, from the instant of their muster 
into the militarv service of the United vStates. C. 25831, Nov. 22, 
1909. 

II A 2. In 1846, after Ohio had furnished its quota of Volunteers 
and they had been accepted, certain other organizations called "Camp 
Wasliington Vohmteers'' assembled near Cincinnati. Their services 
were not recpested or required. Congress on August 8, 1846, by a 
joint resolution directed the Secretary of War "to cause to be paid 
* * * to the companies of Ohio Volunteers assembled at Camp 
Washington near Cincinnati, and who claim to have been mustered 
into service, one day's pay and allowances for every day detained in 
service, and the usual travehng allowance, and no more." The Adju- 
tant General detailed an officer to pay the Camp Washington Volun- 
teers and incorrectly instructed him to muster them as in the service, 
as he beheved that an assemblage of ci^nlian volunteers could not be 
paid. This detailed officer did actually muster the Camp Washington 
Volunteers for pay and paid them. Held that although they were 
listed on a muster roll by this officer in obedience to the order of the 
Adjutant General they were not mustered into the service of the 
United States, as there was no authority for their muster into the 
service of the United States. Held, further, that the Adjutant Gen- 
eral incorrectly interpreted the law in directing that they should be 
mustered for pay, as the law'merel}^ intended their payment without 
muster into tlie service. Held, further, that the Camp Washington 
Volunteers were not mustered into the service by the act of the 
detailed officer in mustering them for pay. C. 2351, June 13, 1895. 

II B 1 a. Held that the mustering of recruits by a State official 
during the Civil War is an act which has no connection with the mus- 
ter in of a volunteer organization when presented to a duly authorized 
mustering officer of the War Department with a view to its accept- 
ance as an organized part of the volunteer forces of the United States. 
C. 25831, Nov. 22, 1909. 

II B lb. A volunteer soldier's entry into service depends upon two 
acts of Abolition, one being the offer to enter the service and the other 
the accepting and carrying out of the offer. Held that the enroll- 
ment for service is only a proposal to enter such service ^ a declaration 
or readiness to do so, and before a man who makes such declaration 
can become a soldier in the military service of the United States it is 
necessary that his proposal be accepted by a duly authorized repre- 
sentative of the United States. This acceptance is manifested by 
muster in. P. 54, 313, July 9, 189J; C. 7050, Oct. 6, 1900. 

II B 1 c. A man who has been duly mustered into the service 
of the United States and has received the pay and performed the 
duties of a soldier should be treated as duly enlisted, though he may 
not have signed enlistment articles. R. 3, 84, June 24, 1863. 

II B 1 d (1). A muster in is not necessarily formal. In some cases, 
indeed, there was no formal muster in, but lield that placing a man on 
duty, or availing of ]iis services, or treating him as duly in the mili- 
tary service, or paying him as a soldier, or taking up his name upon 
the rolls and accepting liis services as a soldier, was a constructive 

1 See 23 Op. Atty. Gen., 406. 
93673°— 17 G6 



1042 VOLUNTEER ARMY II B 1 e. 

muster in. P. J^l, 136, June 3, 1890; 64, 313, July 9, 1892; C. 186, 
Aug., 1894; 1067, Apr. 25, 1896; 2293, June 2, 1896; 2643, Sept. 26, 
1896; 7050, Oct. 6, 1900; 9159, Oct., 1900; 20237, Aug. 15, 1906. 

II B 1 e. Where a regiment is consolidated with another, 
under the name of the latter, no remuster or change of any kind 
taking place in the status of the enlisted men of either regiment, the 
men of each organization become members of the new regiment, not 
by virtue of any consent on their part, but because of the conditions 
01 their original enlistment and muster into the United States serv- 
ice. R. 6, 595, Bee. 31, 1863. 

II B 1 f (1). A muster in is not necessary in the case of a drafted 
man or a substitute. Held that examining him and holding him to 
service and actually putting him on duty takes the place of the 
''muster in." P. 46, 72, Jan. 13, 1891; C. 1570, July, 1895; 2033, 
Aug. 4, 1896. 

il B 2 a. In 1862 Gen. Morgan recommended to the Secretary 
of War that the "Kentucky Home Guards" be called into immediate 
service to the number of 5,000 men. The Secretary of War acknowl- 
edged receipt, but did not call this militia forth. The Kentucky 
Home Guards, however, began service May 7, 1862, under the com- 
mand of Gen. Morgan, and continued such service until July 7, 1862. 
They were not mustered in by a United States mustering officer. 
They were later paid for their services under joint resolution of Feb- 
ruary 8, 1867. Held that they were not mustered into the service of 
the United States.^ C. 783, Apr. 24, 1895. 

II B 2 a (1). Certain organizations of Alabama Territory militia 
in 1817 and 1818 served in the Seminole War without being formally 
mustered in. They were, however, mustered out of the service of 
the United States by officers of the Regular Army and paid from 
money appropriated in the Army appropriation acts, and were recog- 
nized fully at the time by both the Territorial and National authori- 
ties as being in the military service of the United States. Held that 
such recognition should at this time be deemed binding upon the 
United States. 0. 232, Mar., 1895. 

II C 1. State volunteers were enrolled in 1898, during the war 
with Spain, in many instances preceding the dates of muster in. 
Held that the date of muster in and not that of enrollment was the 
date of entry into the service of the United States. Held further 
that the remedial legislation by Congress for the purpose of paying 
such Volunteers the same pay as would have been given to officers 
and soldiers of the Regular Army was a specific recognition by Con- 
gress of the fact that they were not officers and soldiers during that 
period, since if they had been, no remedial legislation would have been 
needed in their behalf. 0. 7050 rOct. 6, 1900;^ 9159, Oct. 20, 1900; 
25831, Nov. 22, 1909. 

II. C 2. Held that under the laws relating to the raising of United 
States Volunteers during the Spanish War, recruits are enlisted directly 
>into the service of the United States and become soldiers in such service 

1 Militia in which the officers were appointed and commissioned in accordance with 
the laws of their States were called out under laws enacted by_ Congress, and such 
troops were mustered in by regiments and in some instances by brigades. See R. <fe P. 
456829; see also 21 id., Op. Atty. Gen., 130, 24, 651. 

2 This opinion was approved by the Secretary of War and published in circular 
form, dated War Department, Mar. 23, 1901. See 23 Op. Atty. Gen., 406. 



VOLUNTEER AEMY H D 1. 1043 

on the completion of enlistment by taking the oath of allegiance. 
a 4631, July 22, 1898. 

II D 1 . The record of a formal muster in is an official record, duly 
made by the proper officers pursuant to law, of an official act per- 
formed under the law. It is therefore, in the absence of fraud, con- 
clusive evidence of the facts recorded, and no other evidence is ad- 
missible to show a different state of facts. Great uncertainty would 
ensue could such records be set aside by parol or other evidence. 
P. 60, 394, July, 1893; C. 10061, Mar. 26, 1901; 17810, Apr. 19, 1905; 
20237, Aug. I4, 1906. 

II E. A muster in is the final act wliich closes a contract between a 
person and the Government and fixes certain relations between them. 
Held that a legal muster in is irrevocable. Held further that a muster 
in may be rescinded during the continuance of the contract if tainted 
with fraud. P. 44, 60, Nov. 19, 1890. 

II F 1 a (1). A private of the One hundred and twenty-sixth New 
York Infantry Volunteers was commissioned a second lieutenant of 
that regiment by the governor of New York under the act of July 22, 
1861 (12 Stat. 261). ^ The mustering officer refused to muster in this 
appointee as a second lieutenant. Held that the appointee did not 
become vested with the office of second heutenant. Held further that 
as he did not at any time act as a lieutenant under a vafid commission 
he is not entitled to a remuster under the act of February 24, 1897 (29 
Stat. 593).^ C. 14587, Jan. 12, 1904; 16516, July 5, 1904. 

IIF 1 a (2). A man hokUng a recruiting commission under the 
appointment of the governor of a State, but not formally mustered 
into the service of the United States, is not, in the absence of a special 
provision by Congress including liim as a part of the Volunteer Army, 
m the mihtarv ser\ace of the United States. C. 20237, Aug. 15, 1906. 

II F 1 b (1). A man claimed recognition as colonel in the Seven- 
teenth New Hampshire Volunteers. Held that as there was never a 
completion of the organization no such United States office ever 
existed as that of colonel in that regiment. Held, therefore, that the 
United States could not have accepted into its service a man as colonel 
of such regiment. P. 4O, 288, Apr. 22, 1890. 

II F 1 b (2). A man claimed recognition as captain in the Pierre- 
pont Rifles. Held that as no such such organization was ever law- 
luUy mustered into the military service of the United States, no such 
office as captain in that organization ever existed in the mihtary serv- 
ice of the United States, and that therefore the claimant could not be 
recognized as an officer holding such office. 0. 25831, Nov. 22, 1909. 

II F 1 b (3). The so-called Quartermaster's Volunteers of 1864, 
composed of clerks and other civilian employees of the War Depart- 
ment, were not authorized by statute to be formed into a volunteer 

^ The Attorney General has held that "to give a citizen the status of the United 
States soldier in the Volunteer Army, his consent and that of the United States are both 
necessary, and the formality which marks this agreement of the two parties to the con- 
tract and the commencement of the obligations thereunder is the muster in. '' (23 Op. 
Atty. Gen., 408.) He has also held that "it is evident that those who are physically and 
mentally incapacitated for military duty should never be received into the_ military 
service of the United States, and the question of fitness und unfitness of a militiaman 
reporting under a call, can only be determined at the inspection which is required to 
be made as preliminary to muster in; the purpose of the law being to prevent the 
acceptance into the military service of the United States of officers and men unfit for 
that service." (24 id., 661.) 



1044 VOLUNTEER AEMY II F 1 C. 

organization, nor were they authorized to be paid; nor were they 
mustered into the miUtary service, nor mustered out or discharged 
from it. They were merely a civiHan body organized with a view to 
service during the temporary emergency that might arise through the 
invasion of Maryland by the enemy. Held that the officers of such a 
force did not hold office in the military estabhshment. P. 32, J^, 
Apr. 22, 1889; 38, ^35, Feb. 12, 1890. 

II F 1 c. A man claimed that he was a volunteer aid-de-camp in 
the Civil War, and asked that his name be placed on the muster rolls 
and a discharge issued to him. Held that since there was no such 
office or position kno\vn. to the law at the time as volunteer aid-de- 
camp, and since he had made no engagement with the Government 
and was not mustered into the service in any capacity or borne on 
United States muster rolls or reports as being attached to such service, 
he could not be regarded as having been the occupant of such a place 
or office. P. 37, 462, Jan. 9, 1890. 

III A 1. Section 13 of the act of April 22, 1898 (30 Stat. 363), pro- 
vided that "Not more than one officer of the Regular Army shall 
hold a commission in one regiment of the Volunteer Army at the 
same time." ^ The act of May 11, 1898 (30 Stat. 405), which provided 
for the organization of a volunteer brigade of engineers in addition to 
the Volunteer Army authorized in the act of April 22, 1898, provided 
that ''Not to exceed three officers of the Corps of Engineers of the 
Regular Army may hold volunteer commissions in any one regiment of 
the volunteer brigade of engineers at the same time." Held that under 
these two laws two officers might be taken from the Engineers and 
one from another branch of the Regular Army for appointment in 
the volunteer brigade of engineers. C. 4371, June 18, 1898. 

Ill B 1. Held that volunteer soldiers may be transferred to the 
Regular Army and there serve the unexpired term. 0. 4^4^, June 3, 
1898. And, under the act of March 1, 1887 (27 Stat. 435), to the 
Hospital Corps. C. 4122, May 17, 1898.^ 

III B 2. Held that there is no legislation which would prevent the 
enlistment of colored cooks in wliite regiments of volunteers, and 
that therefore such enlistment would be legal. C. 4'^^^, Aug. 1, 1898. 

IV A 1. An order issued by the War Department directing the 
muster out of volunteer troops must be regarded as promulgated by 
authority, since it can be issued only by authority of the Secretary of 
War. Held that such order is a regulation with reference to the 
administration of the- Army which the President has the constitu- 
tional authority to make, and, as such, it has the force of law.^ R. 5, 
p. 319, Nov. 19, 1863; C. 6980 and 8962, Sept., 1900. 

IV B 1. Paragraph 1 of General Orders, No. 108, Adjutant General's 
Office, paragraph 15 of General Orders, No. 124, of 1898, and paragi-aph 
2, General Orders, No. 13, Adjutant General's Office, 1899, provided 
that when an organization is mustered out the whole organization 
will be considered to have been mustered out except certain classes of 
absentees. Held that General Orders, No. 124, of 1898 had the same 
effect as General Orders, No. 108, of 1863, viz, to discharge all absentees 
not retained in service by competent authority, and that the Regula- 
tions of 1899 accomplished nothing more except that under the Regu- 
lations of 1899 the retention in service after muster out of an organi- 

' Published in War Department circular of Sept. 20, 1900. 



yOLUNTEER ARMY IV B 2, 1045 

zation must, in order to be valid, be by special authority of the War 
Department. 0. 8962, Seyt. U, 1900;' 6980, SejH., 1900; IOI4I, 
Apr. 2, 1901; 13103, Aug. 9, 1902. 

IV B 2. An order purported to dismiss an officer who has been 
mustered out of the service. Held that it was absolutely void. P. 
45, 57, Jan. 12,1891. 

IV B 3. The muster out is a formal discharge from the Army, 
making a soldier a civihan and terminating all military authority and 
jurisdiction over him; even as the muster in converted the civilian 
into a soldier, so the muster out converts the soldier into a civilian. 
P. 46, 237, Mar. 30, 1891; 65, 105, May 23, 1894; ^- 9596, Jan. 2, 
1901, 10037, Mar. 22, 1901; 10865, July 15, 1901. 

IV B 4. The United States may have as a matter of fairness pro- 
vided for the transportation to their homes and the subsistence 
en route of persons mustered out of the service. Held that this was 
not because they were soldiers, but because they had been soldiers. 
Held further that if it had been intended that they should remain in 
the service until the "disbandment" they would not have been mus- 
tered out until then. P. 51, 210, Jan. 5, 1892. 

IV B 5. Held that a discharge certificate is not necessary to effect 
a muster out, as the muster out is a formal discharge. P. 65, 105, 
May 23, 1894; C. 9556, Jan. 2, 1901. 

IV C. Held that as an officer in a regiment of Volunteers is not an 
officer of the regiment merelv, but an officer of the Volunteer branch 
of the Army, he may be held in service after the muster aut of his 
regiment. C. 5075, Sept. 28, 1898. 

IV C 1. General Orders 108, Adjutant General's Office, 1863, pre- 
scribed that whenever Volunteer troops were mustered out of the 
service the entire regiment or other organization, except prisoners of 
war, would be considered as mustered out at the same time and place, 
but held that neither that regulation nor similar provisions incor- 
porated in General Orders 124, Adjutant General's Office, 1898, and 
General Orders 13, Adjutant General's Office, 1898, are applicable to 
officers and enlisted men specially retained in service after the muster 
out of the organizations to which they belonged, because in such case 
the exceptions are ordered contemporaneouslv bv the same authority 
that made the rule. C. 8962, Sept. I4, 1900} 

IV C 1 a (1). As a general rule an officer or enlisted man of Volun- 
teers, who was not actually mustered out of service with his com- 
mand, must be considered as having been retained in the military 
service of the United States, notwithstanding General Ordei*s No. 108 
of 1863, and other orders and circulars, of similar import, provided 
that he was retained in service, or military control was exercised over 
him, by competent authority. C. 5075, Sept. 28, 1898. 

IV C 1 a (2). An officer or enlisted man so retained in service, or 
subjected to military control, must be considered to have been in 
service so long as he was actually so retained or subjected to control. 
a 5075, Sept. 28, 1898. 

IV C 1 a (2) (a). Under General Order 108, Adjutant General's 
Office, 1863, all men, both present and absent, who belonged to a 
certain organization were mustered out on the date of the muster 

^ Published in War Department circular dated Sept. 20, 1900. 

2 This opinion was published in War Department circular of Sept. 20, 1900. 



1046 VOLUNTEER ARMY TV C 1 a (2) (fc). 

out of the organization to which they belonged, unless they were 
retained in service by competent authority. C. 8962, Sept. I4, 1900. 
Held that a '^competent authority'' was the order of any superior 
whom it was the duty of the person-kept in the service to respect and 
obey while in the service, and who would have had authority to issue 
such order to, or exercise control over, the subordinate officer or 
enlisted man, while the latter was in the service. 0. 5075. Sept., 1898. 

IV C 1 a (2) (&). General Order 13, Adjutant General's Ofhce, 1899 
made provision for the execution of the act of January 12, 1899 
(30 Stat. 784), which provided that the discharge of officers and 
enlisted men from the volunteer forces of the United States should 
as far as practicable, take effect on the date of the muster out of the 
organization to which they belonged. Held that under this regu- 
lation the Secretary of War had authority to retain in service officers 
and enlisted men. C. 5075, Sept., 1898; 6621, July 7, 1899; 7593,^ 
Jan. 29, 1900; 8962, Sept. I4, 1900; 6980, Sept. 18, 1900. 

IV C 1 b. Held that officers and enlisted men who were retained 
for the service or convenience of the Government, or by reason of the 
refusal or neglect of superior officers to cause them to be discharged 
were not mustered out at date of muster out of organization; but that 
deserters at large or absentees with or without leave, at the date of 
muster out of their commands, or any persons who, through fault or 
neglect of their own, failed to be mustered out or discharged at the 
proper time, or those who were permitted to remain under partial 
military' control solely for their own comfort, convenience, or safety, 
such as sick or wounded men undergoing treatment in hospital or 
elsewhere, were not so retained in the service. C. 5075, Sept. 28, 1898. 

IV C 1 c. Held that it was proper to retain in the service officers or 
enhsted men of the Volunteer forces after the muster out of their 
regiments in 1899, for the purpose of bringing them to trial by court- 
martial for offenses charged. C. 5767, Jan. 31, 1899. 

IV D 1 a. Held that the true date of muster out is the date when 
the organization or individual was actually mustered out. R. 16, 
4O6, July 22, 1865; P. U, ^50, Jan., 1891; 1^6, 101, 223, 2^3, Mar. 
and Apr., 1891; 51, 126, Dec, 1891; C. 2888, Jan., 1897; 6621, July, 
1899; 7J^51, Dec, 18 1899; 8722, Aug. 3, 1890; 8962, Sept. I4, 1900.^ 

IV D 1 a (1). When it is clearly shown by the official records that 
a Volunteer organization was actually mustered out of the military 
service of the United States on a certain date, held that that date 
should be accepted as the true date of the muster out, regardless of 
the date which may have been fixed in advance for the muster out, or 
of the date to which payment was made, or of the date of discharge 
entered upon the discharge certificates that may have been given 
to men mustered out of the organization. C. 7^51, Dec 18, 1899; 
8722, Aug. 3, 1900. 

IV D 1 a (2) (a). Certain Volunteer officers who were absent with 
leave from their commands were ordered by the President, on May 
6, 1865, to be honorably mustered out of the service, to date ''the 
fifteenth instant," and to apply immediately by letter for their 
muster-out and discharge certificates. Held, that the muster out 
operated in that case on the 15th instant, though the muster-out and 

» See G. O. 108, A. G. O., 1863; G. O. 13, A. G. 0., 1898, and G. 0. 124, A. G. O., 
1898, for muster out regulations. 
* This opinion was published in War Department circular of Sept. 20, 1900. 



VOLUNTEER ARMY IV D 1 a (2) (fc) [l]. 1047 

discharge papers may not have reached these officers untU after that 
date. C. 1636, Oct, 1895; 1945, Dec, 1895; IOI4I, Apr. 2, 1901. 

IV D 1 a (2) (b) [1]. Section 12 of the act of March 2, 1899 (30 Stat. 
980), provided that ''such increased Regular and Volunteer force 
shall continue in service only during the necessity therefor, and not 
later than July 1, 1901." Held, that officers and enUsted men of such 
force, in the absence of remedial legislation, ceased to be in the military 
service on the 30th of June, 1901. C. 11860, Jan. 6, 1902.^ 

IV D 1 a (2) (6) [2]. The act of July 17, 1862 (12 Stat. 594), pro- 
vided that the men composing regimental bands should be mustered 
out of the service within 30 days after the passage of the act. Held, 
that the act was directory only, and did not invalidate service con- 
tinued beyond the time indicated by reason of the failure of the 
proper officer to muster out the men at the time when the law pro- 
vided that it should be done. P. 52, 392, Mar. 18, 1892. 

IV D 1 a (3). A Volunteer soldier was absent at the date when the 
expiration of his term of service arrived". A detachment from his 
organization, whose service ended on the same date, was mustered 
out on that date on the detachment roU. Held, that the absent 
soldier was not mustered out as of that date, under the provisions of 
General Order No. 108, Adjutant General's Office, 1863, but was mus- 
tered out at a later date when he received notice of his discharge in 
the hospital, where he was being treated for wounds. C. 1297, June 
19, 1895. 

IV D 1 a (4) (a). General Orders Nos. 108 of 1863, 124 of 1898, and 13 
of 1899, Adjutant General's Ofl3.ce, fix the general policy that Volun- 
teers who are absent at the date of muster out of their organizations 
shaU be held to have been mustered out at the date of muster out 
of the organization to which they belonged. C. 6980, Sept., 1900; 
8962,'' Sept. I4, 1900; IOI4I, Apr. 2, 1901; 13103, Aug. 9, 1902. 

IV D 1 a (4) Q)). A Volunteer soldier was absent without leave 
at the time liis regiment was mustered out and the Volunteer forces 
were disbanded. Held, that upon the muster out of the Volunteer 
forces he became a civilian, and that, being no longer in the service, 
he could not later be discharged, but that a certificate to that effect 
may be given him by the War Department.^ C. 12464, July 8, 1902. 

I V D 1 a (4) (c). Under the provisions of General Orders, No. 108, 
Adjutant General's Office, 1863, soldiers who wore prisoners of war 
when their company was mustered out were to "be considered as in 
the service until their arrival in a loyal State, with an allowance of 
time necessary for their return to then' respective places of enroll- 
ment." Held, in the case of a soldier who was a prisoner of war at 
the time his company was mustered out but who, after release from 
captivity, was furloughed and ordered to report at a military post 
on a certain date, that he was in the service until the date designated 
for him to report at such post. Held further that he should be con- 
sidered to have been mustered out on that designated date. P. 64, 
430, Apr. 25, 1894. 

IV D 1 a (5) (a). A person held the office of supernumerary second 
lieutenant of Company G, Eleventh Kentucky Cavalry, which office 
was abolished by the act of March 3, 1863. Held, that at the abolition 

^ Published in War Department circular of May 26, 1902. 
2 Published in War Department circular of Sept. 20, 1900. 
* See War Department circular of June 1, 1901. 



1048 VOLUNTEER ARMY IV D 1 a (s) (b) . 

of the office the occupant reverted to the status of citizen and that 
no muster out was necessary. P. 53, Jf.52, Maij 21, 1892. 

IV D 1 a (5) (6). Held, that volunteers who had been dropped 
fi'om the rolls as deserters preceding the muster out of their organiza- 
tions were not mustered out at the date of muster out of their organ- 
izations, but were separated from the service by the operation of 
being dropped from the rolls. C. 6980, Sept., 1900; 8962,"- Sept. 14, 
1900; 10141, Apr. 2, 1901; 13103, Aug. 9, 1902. 

IV D 2 a. In the case of a Volunteer soldier held in the service, 
by proper authority, after the muster out of his organization, held, 
that his discharge takes effect on the date when he receives notice 
that he has been discharged, but that if he be not held in service by 
proper authority liis discharge takes effect on the date of the muster 
out of the organization to which he belongs, C. 6980, Sept. 18, 1900; 
8962, Sept. I4, 1900; 9556, Jan. 2, 1901. 

IV D 2 a (1). An officer who, having been retained in service 
after his command has been mustered out, was ordered by The 
Adjutant General, or by other competent authority, to proceed to 
his home and report by letter to The Adjutant General for discharge, 
must be considered to have been in service until he received the 
order for his discharge, or, in case it can not be ascertained when he 
received notice of his discharge, until the date of the order directing 
his discharge, provided that it appears that upon receiving the order 
to go to his home and report he obeyed the order without delay. 
C. 5075, Sept. 28, 1898; 2940, Feh. 12, 1897. 

IV D 2 a (2). An officer or enlisted man who was retained in 
service after the muster out of his command and was subsequently 
ordered to report to the cliief mustering officer of his State for dis- 
charge, must be considered to have been in service until the date of 
the issue of that discharge, provided that it appears that he obeyed 
his order and reported to the chief mustering officer of his State 
without delav. C. 5075, Sept. 28, 1898. 

IV D 2 a (3). Neither an officer nor an enhsted man, retained in 
service or subjected to military control after the muster out of his 
command, who voluntarilj^ withdrew himseH from such service or 
control without permission from the proper authority, or who failed 
to promptly obey an order to proceed to his home and report to The 
Adjutant General, or an order to report to the chief mustering officer 
of his State, must be considered to have been separated from the 
service on the date on which he withdrew himself from military con- 
trol or was relieved from duty; and if that date is not ascertainable, 
then his service must be considered to have terminated on the date of 
the last official order issued, or the last official act done to or concern- 
ing him, while he was still actually rendering mifitary service or was 
under actual military control. C. 5075, Sept. 28, 1898, 2940, Feb. U, 
1897. 

IV D 3 a. There can be no such thing as a man's being mustered out 
from the military service nunc pro tunc any more than a man can die 
nunc pro tunc. Even as a man has to live until he dies and can not 
be killed after he has ceased to five, so a soldier must remain a soldier 
until he changes to the status of civilian, and can not be changed to 
the status of civilian years after he has ceased to be a soldier. P. 46 
Mar. 30,J891. Held, that we can not by order create a fact 

' Published in War Department circulars of June 1 and Sept. 20, 1900. 



VOLUNTEER ARMY IV D 3 b. 1049 

to-day and carry the same back to a date and there set it up as a fact 
occurring on that date, whereas in reahty no such fact then occurred. 
R. 16, 406, July 22, 1865; P. U, 450, Jan., 1891; 46, 101, 223, 243, 
Mar. and Apr., 1891; 51, 126, Dec, 1891; C. 2888, Jan., 1897; 7451, 
Dec. 18, 1899; 8722, Aug. 3, 1900; 8962, Sept., 1900.^ 

IV D 3 b. An officer was retained in the service after the muster 
out of his organization for the purpose of his trial by court-martial. 
Held, in one case, that pending nis trial he may not be mustered out 
as of a date previous to the trial. E. 12, 672, Sept. 25, 1865. Held, 
in another case, where the officer was acquitted, that he may not be 
mustered out as of a date prior to the proceedings of the court. 
R. 16, 4O6, July 22, 1865. 

IV D 3 c. Held that after a Volunteer Army has passed out of 
existence there is no authoritv of law under w^hich the War Depart- 
ment can change the record of muster out of a soldier so as to make it 
appear otherwise than as shown by the official records. P. 35, 355, 
Oct. 3, 1889; C. 9170, Oct. 24, 1900. 

IV E. Held that an officer will be mustered out with the rank which 
he actually has in connection with the office into which he has been 
mustered, and that he can not be mustered out with a certain grade 
simply because he is performing the duties of an officer of that grade.^ 
a 9774, Feb. 25, 1901. 

IV F. A legal muster out of service of an officer can not be revoked. 
R. 6, 478, Nov. 5, 1864; H, 197, May 1, 1865; 25, 54I, May 8, 1868; 
P. 35, 303, Sept. 30, 1889. While the Volunteer Army was in exist- 
ence a muster out not secured by fraud through misrepresentation 
{R. 6, 661, Dec. 28, I864), or through withholding evidence {R. 20, 584, 
May 1, 1866), was irrevocable. But held that after the Volunteer 
Army had passed out of existence there is no authority of law under 
which the War Department can change the record of a soldier so as to 
make it appear otherwise than as shown by the official records. 
P. 35, 355, Oct. 3, 1889.^ 

IV G 1. Held that while a volunteer army was in existence a muster 
out secured bv fraud, misrepresentation, or withholding evidence, 
was revocable."^ R. 6, 661, Dec. 28, 1864; H, 463, Feb. 21, 1865; 20, 
584, May 1, 1866; 23, 169, Aug. 11, 1866. 

IV G 1 a. As it is a general principle that fraud vitiates any com- 
pact, and that no party is bound by an engagement or obligation into 
which he has been induced to enter through the fraud or false repre- 
sentation of another, lield that in cases of fraudulent muster out, the 
Government may elect to treat the mustering out order as of no effect; 
or it may revoke it, or discharge without honor or dismiss the officer, 
or, order him to be tried by court-martial for his offense, at any time 
preceding the passing out of existence of the volunteer army to which 
the officer belonged. R. It, 463, Fel. 21, 1865; 23 id., 121, July 19, 
1866; 25 id., 394, Mar. I4, 1868; P. 35, 35, Sept. 30, 1889. 

IV H 1. The War Department (The Adjutant General's office) is 
merely the custodian of the records of disbanded volunteer organiza- 
tions. Undoubtedly there were many things which should have been 
recorded but which were not recorded while the organizations to 
which the records pertain were still in the service of the United States. 
This fact however does not by any means justify the department in 

' See War Department circular of Sept. 20, 1900. 

^ Published in War Department circular of Mar. 25, 1901. 



1050 VOLUNTEER ARMY ^VOLUNTEER BANI>S. 

undertaking to alter or amend the original records in its custody so 
as to make them show what it may now be thought they ought oo 
have been made to show originally. If such a procedure were per- 
missible with regard to one subject, such, for mstance, as that of 
charges against the pay of enlisted men, it would be equally permis- 
sible with regard to an infinite number of other subjects; and there 
would be no end to the alterations and amendments to which the 
records might be subjected in the course of years. ^ C. 9170] Oct. ,1900. 
IV H 2. By General Orders, No. 13, Adjutant General's office, 1899, 
paragraph 148, Army Regulations, was extended to officers of volun- 
teers. Section 3 of tliis order is a regulation in aid of a statute, viz, 
the "act granting extra pay to officers and enlisted men of United 
States volunteers," approved January 12, 1899, and with Army 
Regulations 148, provides a means of determining whether an officer's 
or soldier's service has been honest and faithful. Held, therefore, 
that when under these regulations a board is appointed, its approved 
finding should be held conclusive, as should also the decision of the 
commanding officer when no board has been appointed or applied 
for.2 C. 6408, May, 1899. 

CROSS REFERENCE. 

Appointments by President See Office III A 4 b. 

Army See Volunteer Army. 

Enlistment in See Enlistment I B 2 d- e. 

Examination for commission See Militia XVII to XVIII. 

Office See Office V to VI. 

Office in, abolished See Office II A 1. 

Public property carried into See Militia IX J. 

Regular officer See Office IV A 2 d (3) ; (3) (a). 

Relative rank See Rank II B to C. 

Service %n counts for retirement See Retirement II A 3. 

Trial See Discipline XV 1 1. 

VOLUNTEER BANDS. 

See Army Bands I D to E. 

Funds of. See Government agencies VIII. 

Instruments See Public property VIII A 6. 

Music See Appropriations LX. 

Post exchange profits See Government agencies IIJ 11; 12. 

1 Under date of Mar. 2, 1889, the Secretary of War held that "a record can not be 
altered unless there is express provision of law authorizing such alteration. Where 
evidence is filed which convinces the officer whose duty it is to report upon a record 
that the record is not correct, the fact as shown by the record will be stated, followed 
by a remark showing what in his opinion the correct record should be. It is entirely 
proper to make a note opposite the record believed to be erroneous, to show what 
the correct record is, and where the evidence to substantiate the fact may_ be found. 
This decision should not be construed to prohibit the correction of errors in a report 
or record of current or recent date where the officer who made the record makes satis- 
factory explanation in writing of such erroneous record and authorizes its correction." 

2 This opinion was concurred in by the War Department and the following action 
noted: "Hereafter in the case of any officer or enlisted man of a volunteer organi- 
zation that has been mustered out of service a record of 'service not honest and faithful ' 
that has been made against such officer or enlisted man at the time of his discharge, 
in accordance with paragraph 148, Army Regulations, and section 3, of General Orders, 
No. 13, A. G. O., 1899, will be held to be conclusive. No cancellation, alteration, or 
amendment of such a record will be made, and all applications for the cancellation, 
alteration, or amendment of such a record will be denied, regardless of any and all 
testimony that may be submitted in support thereof, on the ground that the War 
Department has no lawful authority to review the decision that was made in such a 
case or to change the record of that decision." 



VOTE — war: synopsis. 1051 

_ VOTE, 

r. LOSS OF ON CONVICTION. 

A. Means Conviction by Civil Court. 
I A. Where a State statute imposed the disability of loss of the 
right of the suffrage upon persons convicted of larceny, lield that the 
conviction intended was a conviction by a civil court, and that a 
conviction of this crime by a military court (even if convened 
within the State) did not work such disability, or — to enable the 
soldier to vote in the State — require a pardon by the President. 
P. 27, 65, Sept., 1888. 

CROSS REFERENCE. 

See Residence. ~ 

By civilian employees See Eight-hour law IX. 

By deserter See Desertion XIV B. 

Member of general court-martial See Articles of War LXXXIV C I; 2. 

Discipline IX K 1 to 3. 

VOUCHER. 

Certification of by Assistant and Chief Clerk 

of War Department See Civilian employees XVI C. 

Forged See Public money II B 2 

Lost See Discipline X I 7 

WAIVER. 

Accused right to he f resent at trial See Discipline VIII H 2. 

Amount of bond See Bonds III E. 

Bond of contractor See Bonds III A. 

By admission See Discipline V H 2. 

By pleading general issue See Discipline V E ; IX F 2 a. 

Defects in bidders' guaranties See Bonds I C. 

Defects in bonds See Bonds. 

Examination requirements See Laws II A 1. 

Guaranties See Contracts XI F. 

Guarantor for copartner See Bonds I D. 

Plea in bar See Discipline IX F 1 a (1). 

Privilege by witness See Discipline X H 1. 

Right to appear before retiring board See Retirement I N 2. 

Right to discharge See Discharge IX D. 

Right to pension See Office III A 5. 

Sample with bids See Contracts VI I. 

Time limits See Contracts VII J 10. 

Travel allowance in discharge by favor See Pay and allowances III C 2 c (3). 

Trial by Government See Discipline V A. 

Variance See Discipline V D 4. 

WAR. 
I. DEFINED Page 1054 

A. Classes. 

1. Perfect. 

2. Imperfect. 

3. Civil. 

4. Mixed. 

5. Indian Page 1055 

a. Declaration not required. 

B. Beginning of War. 

1. Declaration not necessary. 

2. Spanish War. 

3. Philippine insurrection. 

4. Boxer uprising. 

5. Proclamation. 

a. Should call on citizens to cooperate. 



1052 war: synopsis. 

[. DEFINED— Continued. 
C. Laws of War. 
i. Defined. 

2. Rule of nonintercourse. 

a. Civilians may be put under surveillance Page 1056 

b. Applies to aliens. 

c. Enforcible as to newspapers in occupied territory. 

d. Violation of, is not offense of spy Page 1057 

3. Spies. 

a. Must be captured in flagrante delicto. 

b. Hostile officer. 

c. Hostile straggler. 

d. Gravamen of offense. 

4. Newspapers. 

a. May be suppressed Page 1058 

5. Weapons. 

a. Saber may be shai'pened. 

6. As to property. 

a. Destruction of, in battle. 

(1) Must be borne by sufferers. 

(2) Any compensation is bounty rather than right. 

b. Use of. 

(1) Real property. 

(a) Public buildings Page 1059 

(b) Transportation. 

c. Captured property. 

(1) Not violation of article 5, amendments to Constitution. 

(2) Not impressed under section 3483, Revised Statutes. 

(3) Title accrues to United States. 

(a) Civilian can not convert to own use Page 1060 

(b) Disposed of only by Congress. 

(c) No prize money in Army. 

(d) Personal appropriation of property is a military 

offense. 

(e) Disposition of recaptured property. 

[1] Of loyal owner Page 1061 

[2] Of a regimental flag. 
(/) Immovable can not be alienated, 

[1] Use of, may be licensed Page 1062 

d. Borrowed property. 

(1) From allies. 

e. Seizing of property. 

(1) Of money in bank. 

f. Taxes. 

(1) Become payable to military occupant. 

g. Mapping, etc. 

(1) Photographing fortifications forbidden Page 106S 

h. Destruction of property as a military necessity. 

7. Enemy's government. 

a. Courts enforce local law until suspended. 

8. Military government. 

a. War power — source of and execution of. 

(1) Any proper law of military government after promulga- 
tion is valid law Page 1064 



war: synopsis. 



1053 



1. DEFINED— Contimied. 

C. Laws of War — Continued. 

8. Military government — Continued. 

a. War power — source of and execution of— Continued. 

(2) Commanding general. 

(a) May appoint civil covrt.^. 

(6) May remove civil officials Page 1065 

(c) May collect tariff -Pofl'e 1066 

[1] On cotton, 
(rf) May deport persons for cause. 

(3) Military commissions. 

{a) Are criminal law courts. 
(6) Jurisdiction. 

[1] Source Page 1067 

[2] Cases that arise before organization of military 
government. 

[3] Offenses of spy Page 1068 

[4] Continues until peace. 

[5] Special statutory jurisdiction under act of 
March 3, 1867. 

(c) Lack of jurisdiction. 

[1] Not under military government . . Page 1069 

[a] Even over offenses at prison camp. 
[2] Over civil suits. 
[3] Concurrently with courts-martial. 

(d) Procedure. 

[1] Of coiu-t-martial applicable Page 1070 

[2] Action by convening authority. 
[3] Types of principal cases during Civil War. 
[4] Types of crimes during Civil War. Page 1071 
[5] Types of offense against prisoners of war. 

(e) Sentence Page 1072 

(4) Provost courts. 

b. Continues until Congress makes other pro\Tsion. 

c. In Cuba by intervention. 

(1) Duty is an executive one. 

(a) Questionof intervention arises, How?... Page 1073 
(h) Steps to be taken. 
9. Retaliation Page 1074 

10. Flag of truce. 

11. Prisoners of war. 

a. Unnecessary taking of prisoner's life is murder. 

b. Violation of parol is capital offense Page 1075 

c. Taken from enemy. 

(1) Civil employees. 

(2) May be turned over to civil courts for-trial of murder com- 

mitted in a prison. 

(3) Civil courts may pass on status of prisoner of war if such 

prisoner has become subject to the court's jurisdiction. 

(4) Parol does not authorize prisoner to come within our lines. 

(5) Grounds for remission of sentence of prisoner of war. 

(a) Enemy's chaplain entered line to purchase bibles. 

(6) Termination of status. 

(a) By enlistment Page 1076 



1054 WAR I. 

I. DEFINED— Continued. 

C. Laws of War — Continued. 

11. Prisoners of war— Continued. 

d. Taken by the enemy. 

(1) If under sentence of dismissal remain in service until 

notice of dismissal. 

(2) Parol. 

(a) Returns to duty status. 

(b) Pai'oled prisoner not required to return to regiment. 

(c) May be assigned to duty not in contact with enemy. 

(3) Enlisting in enemy's army. 

12. Writ of habeas corpus may be suspended Page 1077 

a. Revocation of Page 1078 

D. Treaty. 

1. Public movable property not mentioned remains property of former 
owner. 

E. Martial Law. 

1. Defined. 

a. Modified degree of law of war Page 1079 

(1) Military power supreme. 

b. Exists when military government takes control. 

c. Commanding general supreme governor Page 1080 

(1) May stop suits against L^nited States. 

d. When emergency ceases occasion for martial law passes. 

e. Revocation of suspension of writ of habeas corpus. 

f. \\^ien Federal troops protect State they are not under command 

of State authorities Page 1081 

F. Ending of War. 

1. State judge can not decide when war ends. 

2. Spanish War. 

3. Philippine insurrection Page 1082 

4. Boxer uprising. 

G. Newspaper Correspondents. 

1. Subject to military control. 

I. War is that state in which a nation prosecutes its right by force. 
Parties belligerent in a war are independent nations, but it is not 
necessary to constitute war that both parties be acknowledged as 
independent nations or sovereign States. War may exist if one of 
belligerent parties claims sovereign rights against the other.^ O. 7721 , 
May 9, 1907; 17609, Mar. 21, 1905. 

I A 1. A perfect war is one which disturbs the national peace and 
tranquillity and lays the foundation of every possible act of hostility. 
C.7721, May 9, 1907. 

I A 2. An imperfect war is said to be that which does not entirely 
disturb the public tranquillity, but interrupts it only in some particu- 
lars, as in the case of reprisals.^ C. 7721, May 9, 1907. 

I A 3. A civil war is a war de facto existing within the borders of a 
State.2 C.7721, May 9,1907. 

1 A 4. A mixed war is described as a war carried on between a 
nation on one side and private individuals on the other. C. 7721, 
May 9, 1907. 

' The Bank of the Commonwealth v. The Commissioner of Taxes, 67 U. S., 635. 

2 Four Federal cases, 384. 



WAR I A 5. 1055 

I A 5. Active hostilities with Indians do not constitute a state of 
foreign war, the Indian tribes, even where distinct poUtical communi- 
ties, being subject to the sovereignty of the United States.^ Warfare 
inaugurated by Indians is thus a species of domestic rebellion, but it 
is so far assimilated to foreign war that during its pendency and on its 
theater the laws and usages which govern and apply to persons during 
the existence of a foreign war are to be recognized as m general pre- 
vailing and operative. Held that the mere making of predatory 
incursions by parties of Indians with whose tribe no general hostilities 
have been inaugurated does not constitute an Indian war. C. 20570, 
Nov. 27, 1906. 

I A 5 a. No formal declaration of war by Congress or proclamation 
by the President is necessary to define and characterize an Indian 
war. It is sufficient that hostilities exist and military operations 
are carried on.^ C. 7721, May 9, 1907. 

IBl. Held that a state of actual war may exist without any 
formal declaration by either party, and this is true of both civil and 
foreign war.^ C. 17609, Mar. 21, 1905. 

I B 2. The act of April 25, 1898 (30 Stat. 364), declared "that war 
has existed since April 21, 1898," Held that a state of war between 
the United States and Spain began on April 21, 1898. C. 5424, Dec. 
1, 1898; 15754, Dec. 23, 1904. 

I B 3. Held that the insurrection in the Philippine Islands was 
fully initiated as a state of war by the battle of Manila on February 4, 
1899,^ and that there followed a rebellion in which a hostile party 
occupied, and held in a hostile mamier, a certain portion of territory, 
declared their independence, organized armies and engaged the 
troops of the United States in hostilities in which thirty or forty thou- 
sand men were mvolved. C. 8197, May 3, 1900; 10002, Mar. 18, 
1901; 12184, Mar. 12, 1902; 15754, Dec. 23, 1903; 19734, May 15, 
1906. 

I B 4. Held that a waT status existed in behalf of officers and 
enlisted men of the Army of the United States who were in China 
beginning with May 26, 1900. This gave them the increased allow- 
ance of pay for service in time of war. C. 16596, Feh. 10, 1905. 

I B 5 a (l). Held that if a stage is reached where in the performance 
of his duty "to execute the laws of the Union" it becomes necessary 
for the President of the United States to issue a proclamation calling 
upon the insurgents and other evil-disposed persons to retire to their 
homes, it would be advisable to incorporate into such proclamation a 
clause calling upon all citizens to cooperate in the effective suppression 
of unlawful violence.^ C. 20396, Sept. 17, 1906. 

1 C 1. The law of war is, in brief, the law of military government 
and authority as exercised in time of war, foreign or civil. Its usual 
field is the territory of a conquered country in the occupation of a 
hostile army; it is sometimes extended, however, though generally in 

* See Worcester v. Georgia, 6 Peters, 515. 

2 Alaire v. The United States, 1 Ct. Cls., 238, and Marks v. The United States, 28 
Ct. Cls., 147. 

3 Prize Cases, 67 U. S., 636. See Hague Conventions of 1907; 36 Stat. 2241; also 
Military Laws of United States with Supplement of 1911, p. 1461. 

* See Thomas v. U. S., 39 Ct. Cl.^., 1. 

5 This was done by President Washington ui his proclamation dated Sept. 1, 1794, 
and by President Lincoln in his proclamations dated Apr. 15 and May 3, 1861, 
respectively. 



1056 WAR I c 2 a. 

a milder form, to localities under "martial law." It is properly a 
part of the law of nations, though its application may be materially 
varied by the circumstances of the country or the people brought 
under its sway. 

It is a fundamental principle of the law of war that, during a state 
of war, all commercial intercourse between the belligerents is inter- 
dicted and made illegal except when and where it may be expressly 
authorized by the Government. During the Civil War, which, as 
respects the application in general of the laws and usages of war, was 
assimilated to a foreign war,* all trade or intercourse with the enemy, 
except so far as permitted by the President under authority from 
Congress (or in rare cases by a commanding general in the field repre- 
sentmg the President) was necessarily suspended.^ B. 11 , 533, 647, 
651, Mar. and Apr., 1865; 12, 259, Jan., 1865; 14, 2^1, Mar., 1865; 
16, 572, Sept., 1865; 19, 673, July, 1866; 30, 346, May, 1870. 

I C 2 a. Where a party arrested in attempting without authority to 
cross the Potomac for the purpose of holding communication with 
persons in the enemy's country, was ordered by tlie department com- 
mander — his offense having been committed in a district in military 
occupation — to be placed under military surveillance and to furnish a 
bond with sufficient sureties, obliging him not to attemj)t again during 
the war to join or hold intercourse with the enemy, Jield that such 
proceeding was warranted by the laws and customs of war. R. 3, 255, 
July, 1863. 

I C 2 b. Offenses against the law of nonintercourse between the bel- 
ligerents in time of war are no less such when committed by foreigners 
than when committed by citizens. Thus where certain persons made 
their way early in the civil war from Scotland to South Carolina, 
engaged for a considerable period in the manufacture of treasury notes 
for the Confederate authorities, and at the end of their employment 
came secretly and without authority into our lines with the design of 
returning to their home, held that, though British subjects, they had 
identified themselves with the cause of the enemy, and were properly 
amenable to trial for the offense of penetrating our military lines in 
violation of the laws of war. R. 15, 112, Mar., 1865. 

I C 2 c. Held that a system of correspondence which had been con- 
certed and maintained between northern and southern newspapers by 
means of an interchange of published communications entitled "Per- 
sonals," was an evasion of the rule interdicting intercourse with the 
enemy in time of war, and, not being within the regulations established 

1 See Prize Cases, 2 Black., 666-9; Dow v. Johnson, 10 Otto. 164; Brown v. Hiatt, 1 
Dillon, 372; Philips i;. Hatch, id., 571; Sandersons. Morgan, 39 N. York, 231; Perkins 
V. Rogers, 35 Ind., 124; Leathers v. Com. Ins. Co., 2 Bush, 639; Hedges v. Price, 
2 WestVa., 192. 

2 The Ouachita Cotton, 6 Wallace, 521; Coppell v. Hall, 7 id., 542, 554, McKee v. 
United States, 8 id., 163; United States v. Grossmayer, 9 id., 72; Montgomery v. 
United States, 15 id., 395; Hamilton v. Dillin, 21 id., 73; Mitchell v. United States, 
id., 350; Matthews i;. McStea, 1 Otto, 7; Dow v. Johnson, 10 id., 164; Kershaw v. Kel- 
sey, 100 Mass., 561; Lieber's Instructions, G. O. 100, War Dept., 1863, par. 86. Besides 
the suspension incident to the state of war, a suspension of commercial intercourse 
with the enemy was specially directed by act of Congress of July 13, 1861, and pro- 
claimed by the President on Aug. 16, 1861. By authority conferred by the same 
statute, general regulations, concerning commercial intercourse with and in the 
States declared in msurrection, were approved by the President, Jan. 26, 1864, and 
published in G. O. 58, Dept. of the Gulf, of Apr. 29, 1864. 



WAK I C 2 d. 1057 

for correspondence by letter between the lines by flag of truce, should 
not, however innocent might be many or most of the communications, 
be sanctioned by the Government, but that the proprietors of the 
northern newspapers concerned should be notified that unless the 
practice were discontinued, they would be liable to be proceeded 
against for promoting correspondence with the enemy in violation of 
the laws of war or of the special act of Februarv 25, 1863.^ R. 12, 
259, Jan., 1865. 

I C 2 d. A mere violation of the law of war prohibiting intercourse 
between belligerents, committed by a civilian in coming without 
authority within our lines from the enemy's country, can not properly 
be regarded as attaching to him the character of the spy. R., 9, 95, 
May 9, 1S6/+. 

I C 3 a. The spy must be taken in flagrante delicto. If he succeeds 
in making his return to his own army or country, the crime, according 
to a well-settled principle of public law, does not follow him, and, if 
subsequently captured in battle or otherwise, he can not properly be 
brought to trial as a spy.^ R. 5, 248, 286, Nov., 1863; 9, 100, May, 
1864; 23, 459, May, 1867; C. 2644, Sept., 1896; 21529, May 14, 1907, 
Oct. 20, 1908. 

I C 3 b. Where an officer of the enemy's army, arrested while 
lurking in the State of New York in the disguise of a citizen's dress, 
was shown to have been in the habit of passing, for hostile purposes, 
to and from Canada, where he held communication with agents of 
the enemy and conveyed intelhgence to them, held that he was 
amenable to trial as a spy before a military court under the statute. 
R. 11, 474, Feh., 1865; C. 21529, May I4, 1907, and Oct. 20, 1908. 

I C 3 c. Where a soldier of the enemy's army, separated frorn it 
on its retreat from Maryland in 1864, was arrested after wandering 
about in disguise within our Unes for a month, seeking for an oppor- 
tunity to make his way to the enemy's forces and join his regiment, 
held that he was not properly chargeable with the offense of the spy, 
but should, because of Ins disguise, be punished for a violation of the 
laws of war. R. 11, 82, Oct., 1864; C. 21529, May I4, 1907, and 
Oct. 20, 1908. 

I C 3 d. Section 1343, R. S.,' is one of the few provisions of our 
statute law authorizing the trial, in time of war, of civilians, by mili- 
tary courts. The majority, however, of the persons brought to trial 
as spies during the Civil War were members of the army of the enemy. 
The gravamen of the offense of the spy is the treachery or deception 
practiced — the being in disguise or acting under false pretenses.* An 

1 See G. 0. 10, Dept. of the East, 1865. 

2 The leading case on this point in this country is, In the matter of Martin, reported 
in 45 Barb. (N. Y.), 142, and 31 How. Pr., 228. See also par. 104, G. O. 100, A. G. O., 
of 1863. 

See also Hague convention of 1907, 36 Stat, at L., 2241; also Military Laws of 
United States, with Supplement of 1911, p. 1461. Spies must be tried (Hague con- 
vention, 1907). 

^ This section provides: "All persons who, in time of war, or of rebellion against the 
supreme authority of the United States, shall be found lurking or acting as spies, in 
or about any of the fortifications, posts, quarters, or encampments of any of the armies 
of the United States, or elsewhere, shall be triable by a general court-martial, or by a 
military commission, and shall, on conviction thereof, suffer death." 

* Halleck, Int. Law, 406 and 407. 

93673°— 17 67 



1058 WAR I c 4 a. 

officer or soldier of the enemy discovered "lurking" in or near a 
camp or post of our Army, disguised in the uniform or overcoat of a 
United States soldier, is frima facie a spy, and liable to trial as such. 
R. 14-, 579, June, 1865. So an officer or soldier of the enemy who, 
without authority and covertly penetrates within our lines disguised 
in the dress of a civilian, may ordinarily be presumed to have come 
in the character of a spy, unless, by satisfactory evidence that he 
came for some comparatively venial purpose, as to visit his famUy, 
and not for the purpose of obtaining information, he may rebut the 
presumption agamst him and show that his offense was a simple vio- 
lation of the laws of war. R. 2, 580, June, 1863; 4, 307, and 5, 315, 
Nov., 1863; 5, 572, and 7, 66, Jan., 1864; 15, 14, Feb., 1865. 

I C 4 a. There can be no doubt as to the authority of the commander 
of an army, in occupation and government of the enemy's country, to 
suppress a newspaper or other publication deemed by him to be 
injurious to the public interests in exciting opposition to the dominant 
authority or encouraging the support of the enemy's cause on the part 
of the inhabitants. A newspaper may be a powerful agent for such a 

Eurpose, and, when it is so, it may, under the laws of war, as legally 
e sUenced as may a fort or battery of the enemy in the field, tt. 2, 
585, June, 1863. 

1 C 5 a. Held that the sharpening of sabers is not a violation of the 
laws of war nor is it a violation of any of the conventions which have 
been accepted by the United States either expressly or by implica- 
tion for the government of its military forces when engaged in actual 
mihtary operation. C. I4OOO, Jan. 19, 1903.^ 

I C 6 a (1). The destruction or injury of private property in battle 
or the bombardment of cities and towns has to be borne by the 
sufferers as one of the consequences of war. Whatever would 
embarrass or impede the advance of the enemy, as the breaking 
up of roads or the burning of bridges, or would cripple and defeat 
him, as destroying his means of subsistence, may be lawfully ordered 
by the commanding general. The necessities of war justify all this. 
The safety of the State in such cases overrides all considerations of 
private loss. Salus populi is then in truth suprema lex.^ So held 
that the United States was not legally responsible for damages to 
the house of a resident and citizen of Santiago, Cuba, caused "by 
a shell fired from an American war ship on or about the fifth day 
of July, 1898, during the bombardment of the city." C. 5619, Jan. 
5, 1899; 11181, Sept. 12, 1901. 

I C 6 a (2). During the Gvil War the commanding officer of the 
United States forces at Paducah, Ky., ordered the destruction of a 
dwelling house and its contents in order that he might secure an 
open range for the guns of the United States fort, and oecause, with 
other houses also destroyed, it had been used as a cover for Confed- 
erate troops attacking the fort. The Congress appropriated $25,000 
to indemnify the owner of that house. The President vetoed the 
bill.^ Concerning this destruction of property it was held -that it is 
a general principle of both international and municipal law that all 

» See U. S. V. Pacific Railroad, 120 U. S., 227, and authorities cited. 

2 See Messages and Papers of the President, Vol. VII, pp. 172-173; see also Vattel's 
Law of Nations, Book III, Ch. V, p. 321. 



WAR I c 6 b (i) (a). 1059 

property is held subject, only to be taken by the Government for 
piibHc uses, in which case under the Constitution of the United 
States the owner is entitled to just compensation, but also subject 
to be temporarily occupied, or even actually destroyed, in times of 
great public danger and when the pubhc safety demands it; and in 
this latter case Governments do not admit a legal obUgation on 
their part to compensate the owner. The temporary occupation of, 
injuries to, and destruction of property caused by mutual and 
necessary military operations are generally considered to fall within 
the last-mentioned principle. If the Government makes compensa- 
tion under such circumstances it is a matter of boifnty rather than 
of strict legal right. C. 14292, Mar. 12, 1903. 

I C 6 b (1) (a). Held that where a state of war exists the right of 
an army to occupy pubUc buildings without compensation in the 
territory affected can not be questioned. Public buildings include 
buildings of a municipality as well as those of a State. C. 15318, 
May 7, 1906; 5076, Sept. 29, 1898; 5^57, Dec. 8, 1899. 

I C 6 b (1) (&). As there is no doubt of a belligerent's right to take 
forcible possession of a railway or other means of transportation and 
to use the same in his military operations, held that the same right 
exists where several powers cooperating against a common enemy, 
though not formally allied, make a similar seizure of means of trans- 
portation.^ C. 11107, Aug. 19, 1901. 

I C 6 c (1). Held that the property of enemies, captured jure heUi 
in a civil war, did not belong to the class of property indicated in 
Article V of the amendments to the Constitution, the taking of 
which ''for pubhc use without just compensation" is prohibited. 
R. 30, 231, Apr., 1870; C. 10787, July 17, 1901; 11683, Nov. 12, 
1901; 15U8, Nov. 5, 1903. 

I C 6 c (2). The owner of property captured jure heUi is not entitled 
to recover its value under the provisions of section 3483, R. S., as 
being property impressed in the mihtary service.^ R. 38, ^76, Feb., 
1877. 

I C 6 c (3). It is a general principle that captured property of an 
enemy with whom we are at war accrues to the United States. 
The appHcation, however, of tliis principle during the late Civil War 
was affected by the operation of certain acts of Congress. Personal 
property, indeed, of the Confederate States, or of one of them, became 
on capture by the Federal forces the property jure helli of the United 
States. So the title to their real estate, occupied by the United 
States Army at some period of the war and held tiU its end, was 
completed in the United States by the subjection and dissolution of 
the hostile Government, and became public property, subject to the 
disposition of Congress. But real estate of individual enemies 
(including private corporations), while subject to be sold, etc., under 
the act of July 2, 1864, could not in general become vested in the 
United States except through the judgment of a competent court, 
confiscating the same upon proceedings instituted under the act of 

^ See Hague Conventions of 1907, 36 Stat., 2241; also Military Laws of United States 
sdth Supplement of 1911, p. 1461. 
^ As to the distinction between captvure and impressment, see 11 Op. Atty. Gen., 378. 



1060 WAR I 6 c (3) (a). 

July 17, 1862. As to the personal property of individuals, this 
(though in some instances made the subject of proceedings for con- 
fiscation) was mostly disposed of by and under the act of March 12, 
1863, known as the ''Captured and abandoned property act," by 
which such property (except munitions of war and other material 
used or intended to be used m prosecuting the war against the United 
States, and which were of course subject to seizure by the Army and 
became on capture the property of the United States) was required 
to be coUected, sold, and the proceeds paid into the Treasury, subject 
to the claims therefor of parties who should estabUsh their owner- 
ship of the property and the fact that they had not ''given aid or 
comfort to the rebellion." ^ R. 18, 611, Feb., 1866; 19, 162, Nov., 
1865; 23, 90, July, 1866; 26, 160, Nov., 1867; 28, 610, May, 1869; 
29, 6, 364, June arid Oct., 1869; 42, 5^0, Mar., 1880; 43, I64, Jan., 
1880; C. 5076, Sept. 29, 1898; 5457, Dec. 6, 1898; 10787, July 3, 
1901. 

I C 6 c (3) (a). Held that a civilian into whose hands had come, 
at the end of the Civil War, certain captured personal property of 
the enemy was not entitled to convert it to his own use or to 
demand compensation as a condition of its surrender to the United 
States authorities. R.21, 479, June, 1866; C. 12951, July 18, 1902. 

I C 6 c (3) (6). Section 5586, R. S., authorizes the delivery to the 
Smithsonian Institution of certain kinds of property, to be delivered 
to such persons as may be authorized by the Board of Regents to 
receive the same. Upon a request from the Secretary of the Institu- 
tion that a small Spanish cannon captured in the trenches before 
Santiago, Cuba, by United States Volunteers, and brought by them to 
Washington, D. C., be assigned to the United States Museum at the 
Institution, Jield, that the provisions of section 5586 did not apply to 
the property named; that the same being public miUtary stores 
captured from the enemy was property of the United States, and that 
the power to dispose of all property of the United States was exclu- 
sively vested by the Constitution in Congress. C. 5033, Sept., 1898; 
11131, Oct. 11, 1901. 

I C 6 c (3) (c). All property captured from the enemy becomes the 
property of the United States subject to disposition by Congress. 
Where it inures to the benefit of individuals it is in consequence of a 
grant by Congress. But there is no act of Congress which extends to 
members of the Army, Regular or Volunteer, the right to share in prize 
money resulting from captures by the Navy of public or private ves- 
sels of the enemy, though the Army may have aided in the operations 
which led to the capture. C. 5250, Nov., 1898; 12951, July 18, 1902. 
' I C 6 c (3) (d). The provision in the 9th article of war that_ "all 
public stores taken from the enemy shall be secured for the service of 
the United States" is in accordance with the principle of the law of 
nations and of war. " Private persons can not capture for their own 

1 See under this paragraph, United States v. Padelford, 9 Wallace, 531, 538; United 
States V. Klein, 13 id., 128, 136; United States v. Huckabee, 16 id., 414; Haycraft 
V. United States, 22 id., 81; Lamar v. Browne, 2 Otto, 187; Williams v. Bruffy, 6 id,, 
176, 188; Young v. United States, 7 id., 39, 60; Ford v. Surget, id., 594; Dow v. 
Johnson, 10 id., 158; Porte v. United States, Devereux (Ct. Cls.), 109; Winchester 
V. United States, 14 Ct. Cls., 13; United States v. A Tract of Land, 1 Woods, 475; 
Atkinson v. Central Ga. Mfg. Co., 58 Ga., 227. 



WAR I c 6 c (3) (e) [1]. 1061 

benefit."* Military stores taken from the enemy becoming upon cap- 
ture the property of the United States, Congress, wliich, by the Con- 
stitution, is exclusively vested with the power to dispose of the public 
property, as well as to make rules concerning captures on land and 
water, can alone authorize the sale or transfer of the same. An officer 
or soldier of the Army who assumes of his own authority to appropriate 
such articles renders himself chargeable with a military off ense.^ R. 2, 
41, Feb., 1863; C. 12019, Feb. 8, 1902. 

I C 6 c (3) (e) [1]. The property of a loyal owner captured by the 
enemy during the Civil War, and afterwards recaptured by the Federal 
forces, may be turned over to him by executive authority, where 
clearly identified as belonging to him, and he should in general be 
allowed to receive it free from any charge in the nature of salvage.^ 
R. 1, 424, 428, 456, Nov. and Dec, 1862; 11, 266, Dec, 1864; 20, 485, 
Mar., 1866. 

I C 6 c (3) {e) [2]. * Section 218, R. S., in requiring the Secretary 
of War to collect, etc., "all such flags, standards, and colors as are 
taken by the Army from the enemies of the United States," is believed 
to have reference to the flags of the enemy. So advised, that a flag 
of a Massachusetts regiment, captured by Ihe enemy, and retaken at 
the end of the war at Richmond, was not to be considered as one of 
the class placed by the statute under the charge of the Secretary of 
War, and might therefore properly be returned to the State or the 
regiment, if originally belonging to or furnished by the same. Other- 
wise, if furnished by the United States : in such case the flag is prop- 
erty of the United States disposable only by Congress. P. 58, 119, 
Feb., 1893. 

I C 6 c (3) (/) . Under the law of war a government by military 
occupation has no power to alienate immovable property so as to 
render such alienation effective after the reinstatement of the former 
government.* And it would seem that the same rule should apply to 
the granting of franchises to railways, electric-light plants, etc. 
Whether the effect of a treaty of peace substituting the sovereignty 
of the United States for that of the former government would be to 
render such alienations and grants binding is doubtful. Upon this 
point the authorities do not seem to agree, but it is laid down in the 

Instructions for the Government of the Armies of the United States 
in the Field" (G. O. 100, A. G. O. 1863, par. 31) that "a victorious 
army appropriates all public money, seizes all public movable prop- 

^ Although the general or express consent of Congress is necessary for the sale or other 
disposition of captured property, it is within the authority of the Secretary of War to 
allow its custody to remain in the State or other government. The custody of the 
fixed ammunition in the fortification at Habana was left in the Cuban Government on 
the evacuation of the island in 1902; so also as to certain obsolete artillery at Santiago, 
Cuba. 

2 United States v. Klein, 13 Wallace, 128, 136; Decatur v. United States, Devereux 
(Ct. Cls.), 110; Wiiite v. Red Chief, 1 Woods, 40; Bianner v. Felkner, 1 Heisk., 232; 
Worthy v. Kinamon, 44 Ga., 299; Huff v. Odom, 49 id., 395; 13 Op. Attv. Gen., 
105; Hough (Practice), 329, 330, G. O. 54, Hdqrs. of Army, Mexico, 1848; 6. 0. 21, 
War Dept., 1848; do., 64, 107, id., 1862. And see also Lamar v. Browne, 2 Otto, 187, 
195, in regard to the same principle as illustrated by the captiu-ed and abandoned 
property act of Mar. 12, 1863. 

3 See Wilson v. United States, 4 Ct. Cls., 559. 

*Wheaton Int. Law, third Eng. edition by Boyd, p. 469; Hall's Int. Law, fourth 
edition, 482-508; Birkhimer's Military Government and Martial Law, 197. 



1062 WAB I c 6 c (3) (/) [1]. 

erty until further direction by its Government and sequesters for its 
own benefit or that of its Government, all the revenues of real property 
belonging to the hostile Government or nation. The title to such real 
property remains in abeyance during military occupation and until 
the conquest is made complete." If the title to real property is in 
abeyance as stated, it would seem that the military authorities would 
be without power to make an alienation of it by the granting of 
franchises or otherwise which would be valid after the termination of 
the government by military occupation. C. 5076, Sept., 1898; 5^57, 
Dec, 1898. 

I C 6 c (3) (/) [1]. When the treaty of peace with Spain took effect, 
April 11, 1899, the military government was in control in Porto Rico, 
and rightfully continued as the de facto government of the island exer- 
cising both executive and legislative powers,^ subject to such consti- 
tutional limitations as were applicable. As the island had become 
territory of the United States, imder the treaty, the Secretary of 
War was without power in the absence of congressional authority to 
alienate any part of the public domain, but lield that he could, as 
representative of the President, lawfully license the temporary use 
of the same during the occupancy and government of the island by 
the military authorities.^ C. 6990, Nov., 1899. 

I C 6 d (1). Held that when the forces of several States are coop- 
erating against a common enemy, whether in the execution of a treaty 
of alliance or in the mere attainment of a common purpose only, one 
may furnish the other with military assistance in the way of arms, 
military supplies, transportation, medical aid, etc., in the form of 
loans, gifts, or sale. Held further that reimbursement wih be made 
in such a case by the proper staff department upon the presentation 
of the proper claim. G. 11107, Apr., 19, 1901. 

I C 6 e (1). The taking possession, by the order of the commander 
of the mihtary department at New Orleans, for the use of the military 
service in the prosecution of the war, of moneys belonging to enemies 
on deposit in the banks of that city, while occupied (in 1863) by our 
Army, held an act justified by the strict law of war.^ R. 19, 612, 
May, 1866. 

1 C 6 f (1). As a result of military occupation the taxes and duties 
payable by the inhabitants to the former government become payable 
to the military occupant unless the latter sees fit to substitute for 
them other rates or modes of contribution to the expenses of the 
Government. So, lield that the President acted cleaily within his 
powers when under date of August 8, 1898, as Commander in Chief of 
the Army and Navy he ordered and directed what the tariff and 
duties to be levied and collected as a military contribution upon the 
occupation and posesssion of any ports and places in the Island of 
Cuba by the forces of the United States should be; that regulations 

» Cross V. Harrison, 16 Howard, 164, 193. 

2 See opinion of Atty. Genl. of July 26, 1899 (22 Op., 544). 

3 See New Orleans v. Steamship Co., 20 Wallace, 394; Witherspoon v. Farmers' 
Bank, 2 Duvall, 497. But in Planters' Bank v. Union Bank, 16 Wallace, 483, this par- 
ticular order was held to have been an exceeding of authority, not because unauthor- 
ized by the law of war, but for the reason that a previous commander — Gen. Butler — 
on first occupying the city, by his proclamation of May 1, 1862, had pledged^ the 
Government to the holding inviolate of all rights of property. And see The Venice, 2 
Wallace, 258. 



WAR I C 6 g (l). 1063 

for the administration of such tariff and duties should take effect and 
be in force in the ports and places when so occupied; and that ques- 
tions arising under said tariff and regulations should be decided by the 
general in command of the United States forces in said island. C. 
5268, Nov., 1898. 

I C 6 g (1). Held that a person taking photographs of fortifications 
in time of war runs the risk of being treated as a spy, or at the least of 
doing a thing forbidden by the law of war. His arrest outside the 
hmits of a military; reservation would not be a trespass; nor would the 
seizure and retention of the photographic plates be unlawful. Their 
retention would be proper though no notice to the public prohibiting 
the taking of such photographs had been given. C. 478^, Aug., 1898; 
7362, Nov. 28, 1899; 13188, Aug. 23, 1902. 

I C 6 h. It having been established that the owner of certain prop- 
erty at Santo Domingo, P. I., was holding communication with and 
forwarding supplies to the insurgents his house was burned. Held 
that as the property was destroyed as a military necessity the United 
States could not be held pecuniarily responsible therefor. C. 14-972, 
July 25, 1903. Similarly held with regard to the destruction of a 
market house at Bauan, Luzon, P. I., in which a native who was 
friendly to the American cause was murdered because of such friend- 
ship, the burning of the market house being held to be a necessary 
military measure to prevent such future lawless acts. C. 14972, July 
22, 1903, and Jan. 27, 1904. 

I C 7 a. It is a principle of the law of war that the municipal laws 
of a conquered country continue in force during the military occupa- 
tion by the conqueror, except in so far as the same may necessarily 
be suspended or their operation be affected by his acts.^ So, where a 
testator had executed in Vicksburg, IMiss., after its capture and during 
its occupation by our forces a will devising real estate; but such will, 
in not being attested by the required number of witnesses, was invalid 
under the State law; held, that as this law was in no respect modified 
upon the capture, the devisee under the wUl, however loyal, could not 
properly be invested by military authority with the legal title to such 
estate against the heirs at law. R. 19, 474, Mar., 1866. 

I C 8 a. The war power of the United States is vested in Congress 
by Article I, section 8, paragraphs 11, 12, 13, 14, 15, and 16, of the 
Constitution. The President, as Executive and Commander m Chief 
of the Army and Navy, becomes authorized, in time of war, to execute 
this power under the public acts of Congress initiating and defining 
the same. An official of a State can n6 more lawfully exercise any 

* " By the well-recognized principles of international law, the mere military occu- 
pation of a country by a belligerent power or a conqueror does not ipso facto displace 
the municipal laws. Such concjueror or belligerent occupier may suspend or supersede 
them for the time being, but m the absence of orders to that effect they remain in 
force." Wingfield v. Crosby, 5 Coldw., 246. "Supreme military authority in a city 
is not incompatible with the existence and authority of courts of civil jurisdiction 
and procedure." Pepin v. Lachenmeyer, 45 N. Y., 27. And see Kimball v. Taylor, 
2 Woods, 37; Rutledge v. Fogg, 3 Coldw., 554; Hefferman v. Porter, 6 id., 391; Murrell 
V. Jones, 40 Miss., 566; Dow v. Johnson, 10 Otto, 158, 166. But where the courts of 
a hostile country are left open by the conqueror it is only the citizens of such country 
that are subject to their jurisdiction; the officers and soldiers of the occupying army 
are in no manner amenable to the same. This principle was illustrated by the Supreme 
Court in the cases of Coleman v. Tennessee, 7 Otto, 509; Dow v. Johnson, The Philip- 
pine Sugar Estates Development Co. v. United States., 39 Ct. Cls., 225. 



1064 WAR I c 8 a (i). 

part of such function than can an individual citizen.' Thus, where, 
during the civil war, the governor of a State of his own authority 
caused to be arrested and confined at hard labor in a chain-gang cer- 
tain inhabitants of the State suspected of sympathizing with and 
giving aid to the pubhc enemy — announcing that they would be so 
confined until certain civihans and military officers, who were resi- 
dents of such State and had been seized by the enemy, should be 
released; lield, that such proceeding was a transcending of the police 

Eower of the State and an assumption of an exercise of the war power 
elonging exclusively to the Government of the United States, and 
was therefore unauthorized and illegal. R. 2, 511, June, 1863. And 
similarly lield, that the seizing and holding by a governor of a State, 
of certain persons as "hostages," in reprisal for citizens of that State 
captured by the enemy, was an exercise of the war-making power 
belonging to the General Government and could not be recognized 
as legal by the Secretary of War. R. 3, 258, July, 1863. 

I C 8 a (1) . Anything that may properly be made a law of a military 
government, and which is promulgated in any effective way that the 
supreme military commander may see fit to promulgate it, becomes a 
valid law of that government on being so promulgated and must be 
obeyed by all persons within the territory. No rules or laws that may 
have been in force in the territory prior to its military occupation can 
compel the commander to adopt any particular manner of promulga- 
tion of the rules enjoined by him. The chief commander m the ter- 
ritory governed by mihtary government does not fill any office or posi- 
tion that formed a part of the government of the country prior to the 
military occupation; nor is he bound by any rules or laws relating to 
the performance of official duties by any governor or other officer of 
the government displaced. ^ C. 5978, May, 1898. 

I C 8 a (2) (a). It is authorized by the laws of war for a mihtary 
officer commanditig ia time of war in a region in mihtary occupation, 
and where the ordinary courts are closed by the exigencies of the 
war, to appoint a special court or judge for the determination of cases 
not properly cognizable by the ordinary military tribunals. In the 

* While "war can alone be entered into by national authority," so "no hostilities 
of any kind (except in necessary self-defense) can lawfully be practised by one indi- 
vidual of a nation against an individual of any other nation at enmity with it, but in 
virtue of some public authority." Talbot v. Janson, 3 Dallas, 160. 

Cases on Military Government — 

The Prize cases (2 Black, 635); U. S. v. Reiter (Fed. Case, 16146); Tharington v. 
Smith (8 Wallace, 1); U. S. v. Rice (4 Wheaton, 246); Fleming v. Page (9 Howard, 603); 
Cross V. Harrison (16 Howard, 164); De Lima v. Bidwell (182 U. S., 1); Dooley v. 
U. S. (182 U. S., 222); Santiago v. Nogueras (214 U. S., 260); Leitensdorfer v. Webb 
(20 Howard, 176); Handlin v. Wickliffe (12 Wallace, 173); Mrs. Alexander's Cotton 
(2 Wallace, 404); The Bark Grapeshot (2 Wallace, 129); The Venice (2 Wallace, 258); 
New Orleans v. The Steamship Co. (20 Wallace, 387); The Sea Lion (5 Wallace-, 630); 
The Reform (3 Wallace, 617); U. S. v. Lane (8 Wallace, 185); Hall v. Coppell (7 Wal- 
lace, 542); Hamilton v. Dillin (21 Wallace, 73); Mitchell v. U. S. (21 Wallace, 350); 
Matthews v. McStea (91 U. S., 7); The William Bagaley (5 Wallace, 377); Harmony i;. 
Mitchell (Fed. Case, 6082); Mitchell v. Harmony (13 Howard, 115); Mechanics' and 
Traders' Bank v. Union Bank (22 Wallace, 276); Dean v. Nelson (10 Wallace, 158); 
Coleman v. Tennessee (97 U. S., 509); Dow v. Johnson (100 U. S., 158); Neely v. 
Henkel (180 U. S., 109); Brown i;. U. S. (8 Cranch, 110); Planters' Bank v. Union 
Bank (16 Wallace, 483); Gates v. Goodloe (101 U. S., 612); Coolidge v. Guthrie (Fed. 
Case, 3185); U. S. v. Padelford (9 Wallace, 531); Lamar, Executor, v. Brown (92 U. S., 
187); Ford v. Surget (97 U. S., 594); Ex Parte Ortiz (100 Fed. Rep., 955). (These 
citations were compiled by the Staff Class, Fort Leavenworth, Kans., 1910-11.) 

^ See the Havana (Cuba) Slaughterhouse case where Gen. Brooke's act was sustained. 
O'ReiUy de Camara v. Brooke, 142 Fed. Rep., 858, 209 U. S., 45. 



WAE I c 8 a (2) (h). 1065 

Civil War such courts were not unfrequently constituted and were 
commonly designated provost courts. R. 2, I4, Feb., 1863; 15, 519, 
July, 1865. Such courts had no jurisdiction of purely miUtary 
offenses (i. e. offenses which the Articles of War make cognizable by 
court-martial), and were therefore not properly authorized to impose 
forfeitures of pay or other strictly military punishments upon ofhcers 
or soldiers of the Army. R. 6, 635, Dec, 1864; 8, 638, 10, 39 and 560, 
13, 55 and 11 4, July to Dec, 186 4. These courts were in general 
resorted to as substitutes for the ordinary police courts of cities, and 
their jurisdiction was in general confhied to cases of breaches of the 
peace and of violation of such civil ordinances or military regulations 
as might be in force for the government of the locality.^ R. 13, 392, 
Feb., 1865. 

IC8 a (2) (Jb). Held that the military governor of a hostile city 
may remove for cause in time of war the dulv elected alcaldes and 
may appoint others. C. 5873, Feb. 17, 1899. " 

1 Some of these courts, however, took cognizance, in the course of their existence 
of cases of very considerable importance, civil as well as criminal. See the following 
General Orders establishing or relating to Provost Courts and similar tribunals: G. 0. 
41, Dept. of Virginia, 1863; do. 45, Dept. of the Gulf, 1863; do. 6, 77, id., 1864; do., 103, 
146, Dept. of Washington, 1865; do., 39, id., 1866; do. 102, Dept. of the South, 1865; do. 
30, 38, 49, 68, Dept. of S. Carolina, 1865; do. 37, id., 1866; do. 31, Dept. of the Mississippi, 
1865; do. 12, Dept. of Arkansas, 1865; do. 5, Mil. Div. of the James, 1865; do. 81, First 
Mil. Dist., 1867; Circ, Second Mil. Dist., May 15, 1867; G. O. 29, 61, Second Mil. 
Dist., 1868; do. 4, Fifth Mil. Dist., 1869; also Gen. Wool's G. 0. 516 of 1847. 

While the majority of these special tribunals were confined to the exercise of such 
functions as are commonly devolved upon police or justices' courts, their authority 
when empowered for the purpose by a competent military commander, to take cog- 
nizance of important civil actions has been affirmed by the Supreme Court of the 
United States in the case of Mechanics' & Traders' Bk. v. Union Bk., 22 Wall., 276, in 
which a "Provost Coiurt," established at New Orleans by an order of the department 
commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment ren- 
dered by it in an action for the recovery of $130,000, money borrowed by one bank 
from another, was recognized as legal. See this case also in 25 La. An., 387. 

So, the authority of the "Provisional Court of Louisiana" (which succeeded the 
"Provost Court" last indicated, and was established by the President, in an Execu- 
tive order of Oct. 20, 1862) to determine a cause in admiralty, was affirmed by the 
United States Supreme Court in The Grapeshot, 9 Wallace, 129, and later its jiu-is- 
diction in a civil action on a mortgage debt was recognized by that tribunal in Burke 
V. Miltenberger, 19 Wallace, 519. And see the same case, as Biu-ke v. Tregree, in 22 
La. An., 629. "The authority of the same court to take cognizance of a case of murder 
and one of arson (as also of civil controversies) was maintained in an elaborate opinion 
of its judge, Hon. C. A. Peabody (in 1865), in the cases of the United States v. Reiter & 
Louis, reported in 13 Am. Law Reg., 534. 

The civil jurisdiction of a similar war court — the "Commission" established by the 
department commander in Memphis in 1863 — was similarly recognized in Heffer- 
man v. Porter, 6 Coldw., 391. And as to the full authority of this tribunal as a substi- 
tute for the ordinary civil courts of the locality, see also State v. Stillman, 7 id., 341. 
But see, contra, Walsh v. Porter, 12 Heisk, 401. 

In the cases thus sustaining the action of special tribunals diu-ing the Civil War, the 
courts in general refer to the earlier and leading case of Leitensdorfer 1;. Webb, 20 
Howard, 176, in which was affirmed the authority of the courts established in 1846 
in New Mexico as a part of the syBtem of civil government instituted by Gen. Kearney, 
the militaiy commander. With this case consult also United States v. Rice, 4 ^Vheat- 
on, 254; Cross v. Harrison, 16 Howard, 164. 

The reasoning upon which the above-cited later rulings is based is, that the authority 
to create courts with a civil as well as a criminal jurisdiction in a conquered country in 
military occupation attaches to the dominant power by the law of war and of nations 
as an incident to the power to establish a military government; that it is not only the 
right but the duty of the conqueror to institute such courts "for the security of per- 
sons and property and for the administration of justice"; and that when during the 
Civil War such courts were created by commanding generals — such as the commanders 
of separate departments or armies— the order of the commander was to be presumed 
to be the order and act of the President. 



1066 WAK T c 8 a (2) (c). 

I C 8 a (2) (c) . Held, when military government is maintained within 
an enemy's country, that a military government may collect duties, 
and that no court can question a right to collect such duties. C. 
6138, Apr. 12, 1899. 

I C 8 a (2) (c) [1]. Contributions of money exacted from the enemy 
by competent military authority, being justified by the law of war 
and conquest,^ lield that a tax of $5 per bale, levied (in 1864) by the 
military commander at New Orleans, Gen. Canby, upon' cotton 
brought into that city, and applied to hospital, sanitary, and charit- 
able purposes, was authorized under the discretionary power with 
which such a commander was properly invested in time of war.^ 
R. 18, 668, Mar., 1866. 

I C 8 a (2) {d). Held that when the United States occupies hostile 
territory and places in charge a military governor he may, upon 
proper cause, deport from that hostile territory persons **as a men- 
ance to the military situation." C. 10002, Mar. 18, 1901. 

1 C 8 a (3) (a). By a practice dating from 1847 ^ and renewed and 
firmly estabHshed during the Civil War,* military commissions have 
become adopted as authorized tribunals in this country in time of war. 
They are simply criminal war courts, resorted to for the reason that 
the jurisdiction of courts-martial, creatures as they are of statute, is 
restricted by law, and can not be extended to include certain classes of 
offenses which in war would go unpunished in the absence of a pro- 
visional forum for the trial of the offenders. Their authority is 
derived from the law of war,^ though in some cases their powers 
have been added to by statute.® There competency has been recog- 

* Lewis V. McGuire, 3 Bush, 202; Clark v. Dick, 1 Dillon, 8. And see Mai. Gen. 
Scott's order (G. 0. 395, Hdqrs. of Army, 1847) levyiag assessments upon Mexican 
communities for the support of the military government and occupation. 

2 See Hamilton v. Dillin, 21 Wallace, 73' 

3 See Maj. Gen. Scott's G. 0. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, repub- 
lished "with important additions," in G, 0. 190 and 287 of the same year. And see 
the following orders convening military commissions, issued by Gen. Scott: G. O. 
81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392, 1847; and 
9, 1848, Hdqrs. of Army. Also the following issued by Gen. Taylor: G. 0. 66, 106, 
112, 121, of 1847; and the following issued by Gen. Wool: G. 0. 140, 179, 216, 463, 
476, 514, of 1847. 

In this connection, note also the institution by Gen. Scott of "Councils of War'' — 
summary courts for the punishment of certain violations of the laws of war — as exhib- 
ited in G.O., 181, 184, and 372, 1847, and do. 35 and 41, 1848, Hdqrs. of Army. 

* The first military commission of the Civil War is believed to have been that con- 
vened by Maj. Gen. Fremont, by G. 0. 118, Western Dept., St. Louis, Sept. 2, 1861. 

fi See G. 0. 100, War Dept., 1863, Sec. I, par. No. 13; do. 1, Dept. of the Missouri, 
1862; do. 20, Hdqrs. of Army, 1847; United States v. Reiter, 4 Am. Law. Reg. (N. S.), 
534; State v. Stillman, 7 Coldw., 341; Hefferman v. Porter, 6 id., 697. 

^ See act of Mar. 3, 1863, c. 75, s. 30, declaring that, in time of war, &c., murder, 
manslaughter, robbery, larceny, and other specified crimes, when committed by 
persons in the military service, shall be punishable by sentence of court-martial "or 
military commission,' <fec. — an enactment repeated, as to courts-martial, in the 58th 
article of war: Also, sec. 38 of the same act (repeated in sec. 1343, R. S.), making 
spies triable by general court-martial "or military commission" and punishable 
with death. See, further, act of July 2, 1864, c. 215, s. 1, by which commanders of 
departments and commanding generals in the field were authorized to carry into exe- 
cution sentences imposed by military commission upon guerrillas: Also, act of July 4, 
1864, c. 253, sees. 6 and 8 (not now in force), making inspectors in the Quartermaster 
Department triable and punishable by sentence of court-martial or "military commis- 
sion," for fraud or neglect of duty, as also other employees and officers of that depart- 
ment for accepting bribes from contractors, &c. Also the reconstruction act of Mar. 
2, 1867, c. 153, s. 3, by which commanders of military districts were authorized to 
convene military commissions for the trial of certain offenders. 



WAH I c 8 a (3) {b) [i]. 106Y 

nized not only in acts of Congress/ but in executive proclamations/ in 
rulings of the courts/ and in the opinions of the Attorneys General.* 
During the Civil War they were employed in several thousand cases ; 
more recently they were resorted to under the "Reconstruction" 
act of 1867; and still later one of these courts has been convened for 
the trial of Indians as offenders against the laws of war .^ P. Jf.1 , 12-18, 
May, 1890; C. 10750, Aug. 10, 1901; llSJ^l, Jan. 16, 1902; 17328, 
Jan. 4, 1905; 23136, Apr. 24, 1908. 

I C 8 a (3) (6) [1]. The jurisdiction of the military commission is 
derived primarily and mainly from the law of war; that special 
authority has in some cases been devolved upon it by express legis- 
lation has already been noticed. Military commissions are author- 
ized by the laws of war to exercise jurisdiction over two classes of 
offenses, committed, whether by civilians ^ or military persons, either 
(1) in the enemy's country during its occupation by our armies and 
while it remains under military government, or (2) in a locality, 
not within the enemy's countrj^ or necessarily within the theater of 
war, in which martial law has been established by competent 
authority.' The two classes of offenses are : I. Violations of the laws 
of war. II. Civil crimes, wliich, because the civil authority is super- 
seded by the military and the civil courts are closed or their functions 
suspended, can not be taken cognizance of by the ordinary tribunals. 
In other words, the military commission, besides exercising under 
the laws of war a jurisdiction of offenses peculiar to war, may act" 
also as a substitute, for the time, for the regular criminal judicature 
of the State or district. R. 2, 2^2, Apr., 1863; 3, IfiJ^, Aug., 1863; 
7, 20, 4I8, Jan. and Mar., 1864; 8, 153, 529, Mar. and June, 1864; 
20, 602, Mar., 1866. 

1 C 8 a (3) (6) [2]. A military commission, whether exercising a 
jurisdiction strictly under the laws of war or as a substitute in time 
of war for the local criminal courts, may take cognizance of offenses 
committed, during the war, hefoi^e the initiation of the military gov- 
ernment or martial law, but not then brought to trial. R. 19, 390, 
Jan., 1866. So held that an enem}", taken prisoner of war, was triable 
by a military commission for a ^'iolation of the laws of war committed 
before his capture.^ R. 8, 529, June, I864. 

* See the acts cited in last note, together with sees. 1199, 1343, and 1344, Rev. 
Sts., as also the appropriation acts of July 24, 1876, Nov. 21, 1877, June 18, 1878, June 
23, 1879, and May 4, 1880, in which, among other items for the Pay Department, 
appropriation is made "for compensation for citizen clerks and witnesses attending 
upon courts-martial and military commissions." 

2 See the proclamations of Sept. 24, 1862, and Apr. 2, 1866. 

^ Ex parte Vallandigham, 1 Wall., 243; In the matter of Martin, 45 Barb., 146; State 
V. Stillman, 7 Coldw., 341. In the last case the court say: "A military commission isa 
tribunal now (1870) as well known and recognized in the laws of the United States aa 
a court-martial. It has been "recognized by the executive, legislative, and judicial 
departments of the Government of the United States." 

^See 5 Op. Atty. Gen., 55; 11 id., 297; 12 id., 332; 13 id., 59; 14 id., 249. 

* The case of Modoc Indians tried by military commission in July, 1873 (G. C. M. 
O. 32, War Dept., 1873). See 14 Op. Atty. Gen., 249. 

^ The general orders issued during the Civil War contain nearly 150 cases of women 
tried by military commissions. 

^Note, in this connection, Chief Justice Chase's description of the jurisdiction exer- 
cised under military government and martial law, as distinguished from that conferred 
by the military law proper — in Ex parte Milligan, 4 Wallace, 142. 

^ But when an officer or soldier of the enemy's ai-my is, upon capture, charged before 
a military commission with a violation of the laws of war, the proof should of course 
be clear that the act committed was as chai'ged. i.e., was not a legitimate act of war. 



1068 WAE I c 8 a (3) (fc) [3]. 

I C 8 a (3) Q)) [3]. As to the special statutory jurisdiction with which 
the military commission has, in certain cases, been invested, the acts 
of Congress by which this has been conferred and defined have already 
been cited. Of these, the provision in the act of March 3, 1863, 
by which a jurisdiction, concurrent with that of the court-martial, is 
given to this tribunal in cases of spies, is the only one now in force, 
and is embodied in section 1343, R. S. 

I C 8 a (3) (h) [4]. The jurisdiction of a military commission con- 
vened under the law of war may be exercised up to the date of a peace 
agreed upon between the hostile parties or the declaration by the 
competent authority of the termination of the war status.* R. 20, 
484, Mar., 1866; C. 6003, Mar. 10, 1899; 6286, Apr. 13, 1899; 6306, 
Apr. 24, 1899; 15057, Aug. 3, 1903. 

1 C 8 a (3) (&) [5]. Under the "Reconstruction" act of March 3, 
1867, in section 3 of which the commanders of the mihtary districts 
constituted thereby were empowered, in their discretion, "to organize 
military commissions," in lieu of the "local civil tribunals," for the 
trial and punishment of "all disturbers of the public peace and crimi- 
nals," ^ — it was tield by the Judge Advocate General as follows: 

That the military commissions convened under the act would 
properly be governed, as to their form of procedure, by the rules and 
forms governing mihtary commissions under the laws of war while, 
as to their jurisdiction and power of punishment, they would in 
general properly be regulated by the local statutes governing the 
courts for wliich they were substitutes. R. 29, 4O6, Nov., 1869. 

That, being substitutes for the State criminal courts, they were 
authorized to take cognizance of offenses committed (but not brought 
to trial) lefore the date of the act, equally with those committed after 
such date. R. 25, 424, Mar., 1868; 26, 234, Nov., 1867. 

That cases of soldiers offending against the criminal law, whose 
offenses were not within the jurisdiction of a court-martial, might 
legally be brought to trial before military commissions convened under 
the act. R. 26, 487, Mar., 1868. 

That commissions ordered under this act, being in Heu of the State 
tribunals, could not assume to take cognizance of a case within the 
jurisdiction of a court of the United States in operation in the district. 
R. 28, 612, May, 1869. 

That sentences duly adjudged by commissions convened under this 
statute, and wliich had been duly and finall;^ approved by the com- 
petent authority (see sec. 4 of the statute) might legally be executed 
prior to the passage of the act admitting to representation in Congress 
the State in wliich the offense was committed; but that such sen- 
tences, not carried into effect (or of wliich the execution had not been 
entered upon) at that date, could not thereafter legally be enforced.* 
And held, generally, that all proceedings of military commissions which 
remained pending or incomplete at such date became thereupon ter- 

' See 14 Op. Atty. Gen., 250, where this principle is applied to an Indian war. 
See also 5 id., 58. 

2 The constitutionality of this act and the legality of the institution under it of 
military commissions were affirmed by Atty. Gen. Hoar in 13 Op., 59-67. 

3 Compare United States v. Tynen, 11 Wallace, 88, where it is held that "there 
can be no legal conviction, nor any valid judgment pronounced upon conviction, 
unless the law creating the offense be at the time in existence." And to a similar 
effect, see United States v. Finlay, 1 Ab., U. S. R., 364. 



, WAR I c 8 a (3) (c) [l]. 1069 

minated. R. 27, 89, 90, 93, July, 1868; 28, 51, Aug., 1868; 29, 620, 
Jan., 1870, 30, 181, Mar., 1870; C. 15057, Aug. 4, 1908. 

I C 8 a (3) (c) [Ij. In a State or district where military govern- 
ment or martial law has not prevailed, or having prevailed for a time, 
has ceased to be exercised, and the regular criminal courts are open and 
in operation, a military commission can not be empowered to assume 
jurisdiction of a public offense, although the nation be still involved 
m war.* R. 9, 657, Sept., 1864, 12, 422, June, 1865; I4, 382, Apr., 
1865, 16, 298, June, 1865, 30, 34, July, 1869. A fortiori, where, at 
the date of the offense, there was, properly, no state of war in which 
the nation was involved with an enemy. Thus held that a military 
commission could not legally be convened for the trial of Indians, for 
violations of the laws of war, on accounts of thefts, robberies, and 
murders committed by them upon incursions made into the State of 
Texas, where said Indians (unhke the Modocs) were mere raiders, 
with whose tribe, as such, the United States was not engaged in war, 
and whose crimes, therefore, were not committed flagrante lello.^ 
R. 36, 221, Jan., 1875; C. 10750, June 29, 1901. 

I C 8. a (3) (c) [1] [a]. Where tlie State was not under martial law 
or military government, the fact that the offense was committed by a 
prisoner of war at a prison camp (within the State) for the confinement 
of prisoners of war, and guarded by Federal troops, was held insuffi- 
cient to give a military commission jurisdiction of the case. R. 15, 
358, June, 1865. But held that the mere fact of the appointing by the 
Executive of a ''provisional governor" for an insurrectionary State 
in June, 1865, prior to the date of the proclamation (of Apr. 2, 1866) 
declaring the war at an end in that State, and while the territory of 
the same still remained in military occupation, did not operate to oust 
mihtary commissions of jurisdiction of criminal offenses committed 
within the State.^ R. 16, 415, July, 1865. 

I C 8 a (3) (c) [2]. A military commission, convened for the trial of 
offenses under the law of war, has no jurisdiction of civil suits or pro- 
ceedings, either based upon contract or brought to recover damages 
on account of private transactions or personal injuries.* R. 3, 190, 
July, 1863; 5, 86, Oct., 1863; 9, 205, May, 1864; H, 657, Apr., 1865. 

I C 8 a (3) (c) [3]. It is a further restriction upon the jurisdiction of 
the military commission that, except where it may be invested by 
statute with a jurisdiction concurrent with that of courts-martial (as 
by sees. 30 and 38 of the act of Mar. 3, 1863), its authority can not 
be extended to the trial of offenses which are, specifically or in general 
terms, made cognizable and punishable by courts-martial by the 
Articles of War or other statute. In repeated instances during the 

^ See the leading case of Ex -parte Milligan, 4 Wallace, 1; also Milligan v. Hovey, 3 
Bissell, 13; In re Murphy, Woolworth, 143; Devlin v. United States, 12 Ct. Cls., 271; 
12 Op. Atty. Gen., 128. 

^ As to the nature of the hostility which may properly bring Indians "within the 
description of public enemies," compare 13 Op. Atty. Gen., 471. That a detached 
band of marauding Indians was not an "enemy" in the sense of the act of Mar. 3, 
1849 (sec. 3483, R.. S.), pro\ading for the making good of damage sustained by the 
capture or destruction of certain property "by an enemy," was held by the Supreme 
Court in Stuart v. United States, 18 Wallace, 84. 

• See Belding v. State, 25 Ark., 315. And compare 13 Op. Atty. Gen.,.65 and,66; 
Coleman v. Tennessee, 7 Otto, 5 16. .J 

* See State v. Stillman, 7 Coldw., 341; G. O. 1, Dept. of the Missouri, 1862. As to 
the dvil jurisdiction of special courts and commissions instituted during the Civil War. 



1070 WAR I c 8 a (3) (d) [1]. 

Civil War the proceedings of military commissions, in cases in which 
these tribunals had improperly assumed jurisdiction of offenses legally 
triable by courts-martial only were recommended by the Judge Advo- 
cate General to be disapproved. R. 4^8, 4^^, Dec, 1862; 7, 440, 
486, Apr., 1864; 9, 236, June, 1864; 15, 373, June, 1966; 16, 73, 
Apr., 1865; 19, 63, Oct., 1865. 

I C 8 a (3) {d) [1]. Except in so far as to invest military commis- 
sions in a few cases with a special jurisdiction and power of punish- 
ment/ the statute law has faded to define their authority, nor has it 
made provision in regard to their constitution, composition, or pro- 
cedure. In consequence, the rules which apply m these particulars 
to general courts-martial have almost uniformly been applied to 
mihtary commissions. They have ordinarily been convened by the 
same officers as are authorized by the Articles of War to convene 
such courts; 2 the accusations investigated by them have been pre- 
sented in charges and specifications similar in form to those enter- 
tained by general courts; their proceedings have been similar and 
similarly recorded; and their sentences have been similarly passed 
upon and executed. R. I. 453, 465, Dec, 1862; 2, 27, 83, 563, Feb. to 
June, 1863; 3, 428, Aug., 1873; 6, 95, Oct., 1863; 7, 556, Apr., 1864; 
8, 111, Mar., 1864; 13, 392, Feb., 1865; 29, 39, June, 1869. Their 
composition has also been the same, except that the minimum of mem- 
bers has been fixed by usage at three. R. 15, 149, Apr., 1865. They 
have generally also been supplied with a judge advocate as a prose- 
cutiQg officer. A military commission constituted with less than 
three members, or which proceeded to trial with less than three 
members, or which was not attended by a judge advocate, would be 
contrary to precedent.^ R. 9, 591, Sept., 1864; 11, 4'^^, Feb., 1865; 
IS, 286, Jan., 1865; 15, 204, May, 1865; C. 17328, Jan. 4, 1905. 

In view of the analogy prevaihng and sanctioned between these 
bodies and courts-martial, held that mihtary commissions would 
properly be sworn like general courts-martial {R. 11, 111, Nov., 
1864) ; that the right of challenging their members should be afforded 
to the accused; that two-thirds of their members should concur in 
death sentences {R. 23, 650, Aug., 1867); and that the two years' 
hmitation would properly be applied to prosecutions before them. 
R. 9, 657, Sept., I864. 

I C 8 a (3) (d) [2]. Held that the proceedings of a militarv com- 
mission should be completed by the action at the end thereof of the 
officer who convened the commission or by his successor in command, 
the mode of procedure being the same as is followed by general courts- 
martial. 0. 5292, Nov. 8, 1898. 

1 C 8 a (3) {d) [3]. During the Civil War a very great number and 
variety of offenses against the laws and usages of war — charged either, 
generally, as "violation of the laws of war," or, specifically, by their 

^ See statutes cited in notes to preceding section. 

2 A military commission was appointed to meet at Calamba, P. I., in 1900. It 
tried cases which were awaiting trial in that district without the cases being for- 
mally referred to the commission by the convening authority. These cases are pub- 
lished in G. O. No. 4, Headquarters Division of the Philippines, series 1900. 

^ In the absence, however, of any statutory provision on the subject, a commission 
which departed from the general usage in any of these respects would not necessarily 
be held to be an illegal tribunal. 



WAE I c 8 a (3) (d) [4]. 1071 

particiUar names or descriptions — were passed upon and punished 
by military commissions. Of these some of the prmcipal (committed 
mostly by civilians) were' as follows : Unauthorized trading or com- 
mercial intercourse with the enemy; unauthorized correspondence 
^vith the enemy; blockade running; mail carrjdng across the lines; 
drawing a bill of exchange upon an enemy, or by an enemy upon a 

f>arty in a northern city;^ dealing in, negotiating, or uttering Con- 
ederate securities or money ;^ manufacturing arms, etc., for the 
enemy; furnishing to an enemy articles contraband of war; dealing 
in such articles in violation of military orders; publicly expressing 
hostility to the United States Government or sympathy with the 
enemy; coming witliin the lines of the army from the enemy without 
authority; violating a flag of truce; violation of an oath of allegiance, 
orof an amnesty oath; violationof parole by a prisoner of war; aiding 
prisoner of wai' to escape ; unwarranted treatment of Federal prison- 
ers of war; burning, destroying, or obstructing railroads, bridges, 
steamboats, etc., used in military operations; cutting telegraph wires 
between military posts ; recruiting for the enemy within the Federal 
lines; engaging m "guerrilla" or partisan warfare; assisting Federal 
soldiers to desert; resisting or obstructing an enrollment or draft; im- 
peding enlistments ; violating orders in regard to selling liquor to sol- 
diers or other military orders of police in a district under military 
governmept; attempt without success to aid the enemy by transport- 
ing to him articles contraband of war; conspiracy by two or more to 
violate the laws of war by destroying life or property in aid of the 
enemy. B. 2, lU, ^pr., 1863; 3, 4OI, 589, 6^9, Aug. and Sept., 1863; 
4, 320, Nov., 1863; 5, 36, Sep., 1863; 590, Jan., 1864; 6, 20, Jan., 
1864; 7, 413, Mar , 1864; 8, 529, June, 1864; 9, 149, 202, 225, 481, 
524, 535, May to Aug., 1864; 10, 567, Nov., 1864; H, 473, 513, Feb. 
and Mar., 1865; 13, 125, Dec, 1864, and 675, June, 1865; 16, 446, 
Aug., 1865; 21, 101, Dec, 1865, and 280, Mar., 1866, etc 

I C 8 a (3) (d) [4]. Of the ordinary crimes taken cognizance of 
under similar circumstances by these tribunals, the most frequent 
were homicides, and after these, robbery, aggravated assault and bat- 
tery, larceny, receiving stolen property, rape, arson, burglary, riot, 
breach of the peace, attempt to bribe public officers, embezzlement 
and misappropriation of public money or property, defrauding or at- 
tempting to defraud the United States, etc. R. 7, 4I8, Mar., 1864; 
8, 194, 529, Apr. and June, 1864; H, 40, Jan., 1865; 15, 281 , May, 1865; 
18, 525, Jan.,1866;19,319,and390,Jan.,1866;21,225, Feb., 1866; 22, 
116, Aug., 1866; 27, 423, Dec, 1868, and 522, Feb., 1869; 29, 157, 233, 
Aug., 1869; 30, 380, 638, May and Sent, 1870, etc 

I C 8 a (3) {d) [5]. Not unfrequently the crime, as charged and 
found, was a combination of the two species of offenses above indi- 
cated. As in the case of the alleged killing, by shooting or unwar- 
rantably harsh treatment, of officers or soldiers, after they had sur- 
rendered, or while they were held in confinement as prisoners 
of war; of which offenses persons were in several cases during the 
Civil War convicted by miUtary commissions under the charge of 

1 See Britton v. Butler, 9 Blatch., 457; Williams v. Mobile Sav. Bk., 2 Woods, 501; 
Woods V. Wilder, 43 N. York, 164; Lacy v. Sugarman, 12 Heisk., 354. 

2 See Hero v. Lockbart, 17 Wallace, 580. 



1072 WAR I c 8 a (3) (e). 

''murder, in violation of the laws of war." ^ R. 7, 360, Mar., 1864; 
17, 455, and 19, 221, Oct., 1865; 20, 650, May, 1866. 

I C 8 a (3) {e). Except in a case of a spy whose sentence must be 
death (sec. 1343, R. S.), the discretion of the military commission in 
the imposition of sentence is not in terms restricted or defined by the 
existing law. R. 7, 62, Jan., 1864- The sentence, however, should 
award a criminal punishment; a judgment of debt or damages, on con- 
viction of a criminal offense, would be irregular and properly disap- 
proved. R. 3, 190, July, 1863. Where a military commission was 
acting under the reconstruction laws, practically as a substitute for a 
State criminal court, held that it should, in general, in determining 
the proper measure of punishment to be inflicted, take into considera- 
tion the State statute law, if any, prescribing the penalty or penalties 
for the offense.2 R. 29, 4O6, Nov., 1869; C. 12397, Apr. 10, 1902. 

I C 8 a (4). Held that after the declaration of peace the rule of hos- 
tile occupation can no longer be enforced in Porto Rico, as the treaty 
of peace assumes that the ordinary criminal courts will continue to 
exist. But held that if these courts can not be relied upon to suppress 
crime the President has the power to appoint provisional courts with 
competent jurisdiction over such offenses to continue until Congress 
has provided a system of government for Porto Rico. C. 6003, Mar. 
9, 1899; 6286, Apr. 13, 1899. 

I C 8 b. A government that may have been established under mili- 
tary occupation over territory that may have been acquired by con- 
quest or treaty may continue until Congress shall have made other 
provision, and is not necessarily terminated by a treaty. C. 25629, 
Sept. 30, 1909. 

I C 8 c (1). The treaty between the United States of America and 
the Republic of Cuba of May 22, 1903, in article 3, provides that: 
"The Government of Cuba consents that the United States may 
exercise the right to intervene for the preservation of Cuban inde- 
pendence, the maintenance of a government adequate to the pro- 
tection of life, property, and individual liberty, and for discharging 
the obligations with respect to Cuba imposed by the treaty of Paris 
on the United States, now to be assumed and undertaken by the 
Government of Cuba" (33 Stat. 2248). Held that the treaty con- 
taining this clause was made under the authority of the United 
States and in the manner prescribed in the Constitution and is there- 
fore a part of "the supreme law of the land." Held further that 
the duty of intervention described above is primarily an executive 

» See G. C. M. O. 607, War Dept., 1865; do., 153, id., 1866. A more recent illustra- 
tion was the principal offense of the Modoc Indians (tried by military commission in 
July, 1873), which, as a treacherous killing of an enemy during a truce, was charged as 
"murder in violation of the laws of war." (G. C. M. O. 32, War Dept., 1873.) 

^ Except where the death sentence was pronounced, the punishment adjudged by 
military commissions during the civil war was in the great majority of cases, 
an imprisonment for a certain term or ' ' till the end of the war. ' ' Fines were sometimes 
imposed and a sending beyond the lines of the United States forces was not infrequent. 
A confiscation of property was also occasionally adjudged. In many instances, in lieu 
of any punishment, it was directed or recommended by the commission that the 
accused be required to take an oath of allegiance, or give a parole, and in some cases 
also to give a bond for future loyal behavior. 



WAR I c 8 c (l) (a). 1073 

duty/ and that any duties which in the course of its performance 
devolve upon other departments of the Government are collateral 
and secondary, and are subordinate in importance and obligation 
to those which devolve upon the Executive. C. 20396, Sept. 15, 1906. 

I C 8 c (1) (a). Held that the exclusively executive character of the 
duty of intervention with which the United States is charged in article 
3 of the treaty between the United States and the Republic of Cuba 
is indicated by the several steps which it may be found necessary to 
take in the performance of that duty. Thus: If an insurrectionary- 
movement should come into being on the island of Cuba with which 
the Cuban Government was powerless to deal, and such condition 
should be made known to the President of the United States, cither 
as the result of his own observation or of representatiors made to 
him, or upon admission by the Cuban Government that it had 
exhausted its powers and was unable, by its own agencies and instru- 
mentalities, to maintain order in the island, held that the' duty of 
intervention, with a view to the establishment and maintenance of 
public order, will have accrued.^ C. 20396, Sept. 15, 1906. 

I C 8 c (1) {h). Held that should the condition described in article 3 
of the treaty between the United States and Cuba obtain, and inter- 
vention by the United States become necessary, the first steps 
would be political and advisory. The Government and people of 
the island may be oflicially notified of the power and duty of the 
Executive under the treaty, and negotiations may be undertaken 
with a view to the restoration of order by pacific methods, a resort 
to good offices, compromise, or redress of grievances. Should these 
methods fail, however, the next steps in execution will consist of 
the issue of a proclamation by the President calling upon all persons 
composing the insurrectionary combinations to disperse and retire 
peaceably to their respective abodes within a specific date from the 
date of issue of such proclamation. Assuming the issue of such a 
proclamation, it will then become necessary for the President to 
employ the land and naval forces of the United States in the restor- 
ation of order in the island and in the removal of o])position to the 
execution of the laws. A forcible uprising becomes, in virtue of 
article 3 of the above treaty, and the fact that the Cuban consti- 
tution itself c<intains the treaty provisions above referred to, author- 
izing intervention by the United .States, a forcible resistance to the 

' The duty of suppressing insurrectionary movements has in the past devolved 
upon the Executive department. Thus: President Washington issued a proclama- 
tion on Aug. 7, 1794, calling upon those engaged in the "^Miisky Insurrection" to 
retire to their homes. President Pierce similary issued a proclamation on Feb. 11, 
1856, on the occn.-^ion of the disturbances in the Territory of Kansas. Similarly, 
President Cleveland issued a proclamation on Feb. 9, 1886, upon the occasion of an 
insurrectionary movement in Washington Territory, in which he gave the evil dis- 
posed but one day to disperse. 

Similarly, upon at least two occasions, the last in 1902, the President has inter- 
vened on the Isthmus of Panama and has used the land and naval forces to maintain 
freedom of transit under article 35 of the treaty of Dec. 12, 1846, with Colombia. No 
Executive proclamation was issued in either case, and the intervention was accom- 
plished in the operation of instructions communicated, in the name of the President 
by the Secretary of the Navy, to the commanding officer of the naval forces in the 
Carribean Sea. In both cases the action taken by the President was reported to 
Congress under the method prescribed by the Constitution. 

2 Act of Mar. 2, 1901, 31 Stats. 897. 

93673°— 17 68 



1074 WAR 10 9. 

authority of the United vStates, and brings the matter within the 
operation of paragraph 14, section 8, Article I, of the Constitution, 
which authorizes Congress "to provide for calling forth the militia 
to execute the laws of the United States, suppress insurrection, and 
repel invasions." The land and naval forces of the United States 
may be employed, under section 5298, R. S., in order that Cuban 
independence may be preserved, and that a government adequate 
to the protection of life, property, and individual liberty may be 
made secure. C. HH8, Bee. 28, 1911; 20396, Sept. 15, 1906. 

I C 9. Two soldiers of the United States Army having been seized 
and delivered across the lines to the enemy by a party of civilians in 
a portion of one of the insurrectionary States m the occupation of the 
Federal forces, an equal number of citizens of the district were ordered 
by the commanding general to be arrested and held till the offenders, 
who, meanwhile, had taken refuge with the enemy, should be sur- 
rendered for trial. Held that such an act of retaliation was warranted 
by the laws and usages of war. R. 9, 210, June, 1864- 

I C 10. The use of flags of truce by the enemy during the Civil War 
was recognized as a belligerent right.* But the admission by flag of 
truce within the lines of the United States Army in time of war of 
persons commg from the lines of an enemy can not entitle such per- 
sons to immunity from subsequent inquiry into their character and 
business, or from restramt and detention upon reasonable grounds of 
suspicion appearing agamst them. Moreover a flag of truce does not 
operate as a safe-conduct, allowing the party admitted under it a free 
passage through the territory or a dispensation from the legal effects 
of war, but affords him a merely temporary protection not to be 
continued after the immediate mission of the flag has been accom- 
plished. R. 5, 193, Oct., 1863; 6, 1^31^., Oct., 1864; 8, 612, June, I864. 
So Tield that a person who, during the War of the Rebellion, availed 
himself of a flag of truce to enter our lines for an illegal purpose, was 
in no degree protected by the flag from liability to arrest upon his 
purpose becoming apparent, or from amenabihty to trial and punish- 
ment for any overt act in violation of the laws of war.^ R. 19, 673, 
July, 1866. 

I C 11 a. The takmg of the life of a prisoner of war, when not con- 
certing an escape or engagmg in any violence or breach of discipluie 
justifying such an extreme measure, is as fully murder as could be 
any homicide committed with deliberate malice in time of peace.^ 
R. 7, 360, Mar., I864. 

1 Williams v. Bruffy, 6 Otto, 176, 187. 

2 See Instructions relative to the dispatch and reception of Flags of Truce, prepared 
in the Judge Advocate General's Office, published in G. O. 43, A. G. 0., 1893. 

^ Murder, at common law, is "the unlawful killing, by a person of sound memory 
and discretion, of any reasonable creature in being and under the peace ot the State, 
with malice aforethought either express or implied." In many of the States, two or 
more degrees of murder are now distinguished by the statute law; murder in the 
first degree — generally defined as a killing accompanied by express malice, or a 
deliberate unlawful intent to cause the death of the particular person killed — being 
ordinarily alone made capital. Manslaughter, at common law, is distinguished from 
murder by the absence of malice aforethought. The ^tate statutes have generally 
constituted degrees of manslaughter^ also, a different measure ot punishment being 
assigned to each degree. The laws of the United States, through prescribing different 
punishments for manslaughter under different circumstances, recognize no discrimi. 
nations of grades in either manslaughter or murder. See Coke. Inst. 47; 4 Bl. Com- 
95; 1 East, P. C. 214; 1 Russell, Cr. 482, 1 Gabbett, 454, 2 WTiarton, Cr. L. sec. 930; 



WAR I c 11 b. 1075 

I C 11 b. The violation of his parole by a paroled prisoner of war 
is an offense against the common law of war and punishable with 
death.i R. 6, 20, Jan., 1864. 

I C 11 c (1). An engineer captured wliile doing duty on a steamer 
of the enemy, held properly detained as a prisoner of war, civil 
employees of the enemy serving with its army in the field bemg 
regarded as on the same footing in this respect with the soldiers of 
such army .2 R. 6, 542, Aug., 1866. 

I C 11 c (2). Where a prisoner of war, held with other prisoners at 
a prison camp within a State in which the civil courts were in oper- 
ation, kUled one of his fellow prisoners, advised that the Government 
might in its discretion turn him over for trial to the State authorities, 
or exchange him under the cartel and leave him to be tried by the 
Confederate authorities. R. 13, 498, Mar., 1865. 

IC 11 c (3). Where certain persons, appreliended, while engaged 
apparently as partisans in a raid from Kentucky into Indiana, were 
held to trial by a civil court of the latter State for robbery, and the 
Confederate agent for the exchange of prisoners of war made there- 
upon official application that they should be treated and exchanged 
as such prisoners, on the ground that they were Confederate soldiers 
acting under the orders or their militar}^ superiors, advised, in view 
of the serious doubt as to their real status, that they be left to have 
their offense passed upon by the court which had assumed jurisdic- 
tion of their case, and by which the defense that their operations were 
legitimate acts of war could be properly investigated.' R. 2, 591, 
June, 1863; 5, 344, Nov., 1863. 

I C 11 c (4). WTiere certain soldiers of the enemy's army, having 
been taken prisoners in Virginia upon Lee's surrender, were released 
on parole, on condition of their returning to their homes, held that 
this parole did not authorize them, in the absence of special authority 
from the United States Government, to come within our lines and 
into the State of Maryland, although that State had been their place 
of residence before tlie war; and that, in actually coming into Mary- 
land, they were chargeable with a violation of their parole.* And 
held, further, that a citizen of Maryland, in harbormg and relieving 
them after coming into that vState, was chargeable with an offense 
under article 45. R. 12, 400, May, 1865. 

I C 11 c (5) (a). "Wliere a chaplain of the Confederate Arm}^ came 
within the Imes of the United States Army during the war without 
the authority of the Federal Government, and was apprehended, 

3 Greenl. Ev. eec. 130; Commonwealth v. Webster, 5 Cush. 304; G. O. 23, Dept. of 
California, 1865 (Remarks of Maj. Gen. McDowell). "Murder, originally," says For- 
ter (p. 302, citing Bracton "de murdro"), was "an insidious secret assassination; 
occulta occisio, nuUo scicnte aut vidente.'^ Now, secrecy in the commission of the act 
is significant only as evidence of legal malice. 

W'liile it is lawful to kill an enemy "in the heat and exercise of war," yet "to 
kill such an enemy after he has laid down his arms, and especially when he is con- 
fined in prison, is murder." State v. Gut, 13 Minn., 341. 

1 See G. O. 100, War Dept., 1863, par. 124 (Lieber's Instructions). 

2 See Hague Convention of 1907, 36 Stat., 2240; also MiHtary Laws of United States 
with Supplement of 1911, p. 1461. 

3 See 11 Op. Atty. Gen., 240. 

■* In 11 Op. 207, Atty. Gen. Speed says of these paroled prisoners that they "can 
not be regarded as having homes in the loyal States. * * * As belligerents 
their homes were, of ^necessity, in the territory belligerent to the Government of the 
United States." 



1076 WAB I c 11 c (6) (a). 

tried, and convicted of the offense involved, and sentenced (Dec, 
1864) to be confined during the war, advised that while his act was in 
violation of the law of war, yet, as it appeared that his only object 
in coming within our lines was to purchase Bibles, his punishment 
might well be remitted on his taking the usual oath of allegiance to 
the Federal Government. R. 11, 55S, Mar., 1865. 

I C 11 c (6) (a). Held, that a prisoner of war termmates his status 
as such when he enUsts in the Army, and can not be returned to it upon 
his discharge. C. 16, July 13, 1894; 1193, Apr-. 13, .895. 

I C 1 1 d (1 ) . Where an officer of our Army, while on trial or awaiting 
sentence, is taken prisonev by the enemy, and a sentence of dismissal 
adjudged by the coint and duly approved is not officially communi- 
cated to him till, upon being exchanged, he has returned to his regi- 
ment, he is entitled to be treated and paid as having been m the 
United States service up to the date of such notification. And so of 
an officer dismissed by order, or a soldier dishonorably discharged by 
sentence under similar circumstances.* R. 12, 230, Jan., 1865; 13, 589, 
Apr., 1865; C. 2039, Feb., 1896.^ 

I C 11 d (2) (a). A paroled prisoner is simply a soldier who has been 
placed under a disability to engage in active operations against the 
enemy. He remams a part of the Army and as much subject to miU- 
tary control as he was before his capture. If he absents himseK 
without authority from the post or station to which as a paroled 
prisoner he has been assigned by the military authorities, he is absent 
without leave or in desertion according to the intent with which he 
absented himself. C. 1746, Sept., 1895; 17937, May 4, 1905. 

I C 11 d (2) (6). A prisoner of war, on bemg paroled, is not neces- 
sarily bound to return to the regiment or other command to which he 
was attached upon capture, or subject, if he does not return, to be 
treated as a deserter. In the absence of any special order given him 
by competent authority he is required only to abide by the existing 
orders m regard to paroled prisonei-s in general. R. 39, 339 Bee, 1877. 

I C 11 d (2) (c). Held, in the absence of any stipulation to the con- 
trary in the cartel of exchange,^ that a prisoner of war of our Army, 
released on parole by the enemy, might legally be put on duty as one 
of the post guard at a post not in the field or threatened by the enemy .^ 
R. 21, 592, Aug., 1866. 

1 C 11 d (3). While it is laid down by the authorities * that a pris- 
oner of war is, strictly, justified in enlisting in the service of the enemy 
only by a well-founded apprehension of immediate death, yet where 
soldiers of the Federal Army, while subjected when prisoners in the 
hands of the enemy, to extreme privation and suffering by which their 
lives were imperiled, were induced, solely in order to fmd means of 
escape from such desperate situation to enlist in the enemy's army, 
advised that such soldiers, on subsequently surrendering to or being 

* Note the provision of the act of 1814, now incorporated in section 1288, R. S., 
entitling certain officers and soldiers to be paid as such during their captivity when 
made prisoners of war by the enemy. And see Jones v. United States, 4 Ct. Cls., 197; 
Phelps V. United States, id., 209 — adjudicated cases of officers dismissed while prison- 
ers of war and claiming pay under the statute. 

2 See 10 Op. Atty. Gen., 357. 

3 See G. 0. (A. & I. G. O.) of Feb. 14, 1814; do. 100, War Dept. 1863, par. 130 
(Lieber's Instructions). 

* Respublica v. McCarty, 2 Dallas, 86; United States v. Vigol, id. 346. And com- 
pare United States v. Griner, 4 Philad., 396, 401. 



WAE I C 12. 1077 

captured by our forces, should not as a general rule be treated as 
deserters, but should be returned to duty with their regiments without 
punishment. R. H, 135, Feb., 1865; 16, 40, 271 , Apr. and June, 1865^ 
But where it appeared that certain soldiers of our Army who when 
prisoners of war had enlisted in the enemy's service, had not attempetd 
to escape when they might have done so but had voluntarily remamed 
and fought in the ranks of the enemy's army till forcibly captured by 
our forces, advised that their representations to the effect that they had 
joined the enemy to escape cruel treatment as prisoners of war should 
not be allowed to weigh in their favor, but that they should be brought 
to trial for the crime of desertion to the enemy. R. 16, 136, May, 
1865. 

I C 12. In a proclamation of May 10, 1861 , the President authorized 
the commander of the United States forces on the Florida coast, if he 
found it necessaiy, " to suspend there the writ of habeas corpiis." By 
General Order 104, War Department, August 13, 1862, the President 
suspended the privilege of the writ of habeas corpus in cases of persons 
Hable to draft who should attempt to depart to a foreign country, or 
should absent themselves from the State or county of their residence 
in anticipation of a draft to which they would be subject. By a proc- 
lamation of September 24, 1862, the President declared the privilege 
of the writ suspended in respect to all persons arrested or imprisoned 
"during the rebellion by any military authority," or under ''sentence 
of any court martial or military commission." These proclamations 
and orders were all based upon the theory that under Article I, section 
9, paragraph 2, of the Constitution, or otherwise, the President alone, 
in the absence of any authority from Congress, was empowered to sus- 
pend the privilege of the writ.^ R. 1, 3^5, Sept. 10, 1862. ' 

But in the following year, by the act of Congress of March 3, 1863, 
chapter 81 , section 1 , it was provided : "That during the present rebel- 
lion the President of the United States, whenever in his judgment the 
public safety may require it, is authorized to suspend the privilege of 
the wiit of habeas corpus in any case throughout the United States or 
any part thereof" — Congress, by thus assertmg the right in itself to 
authorize the suspension, implying that, in its opinion, the power to 
suspend did not reside in the President.^ 

In sundry particular cases, refeiTed to the Judge Advocate General 
by the Secretary of War, of persons detected in holding con'espond- 
ence with, or giving intelligence or otherwise lending aid to, the enemy, 
as also in obstiiicting enlistments in the Army, etc., the opinion was 
expressed that the suspension of the writ by the President would be 
legally justified under this act. R. 2, 174, ^56, Apr. and May, 1863; 
3, 72, June, 1863. The instances, however, of suspension in individual 
cases were not numerous; for, presently, viz, on September 15, 1863, 
and pursuant to the act of March, 1863, above cited, the President 

^ The question whether the President was authorized, in his own discretion and 
independently of the sanction of Congress, to exercise this power, was much dis- 
cussed early in the Civil War. The fullest argument in favor of the existence of the 
f)ower in the President, is contained in Mr. Horace Binney's treatise on "The Privi- 
ege of the Writ of Habeas Corpus under the Ciinstitution." And see also. Ex parte 
Field, 5 Blatch., 63; Opinion of Attorney General Bates in 10 Op., 74. The weight of 
judicial authority, however, was the other way. See Ex parte Merryman, Taney, 
246; McCall v. McDowell, 1 Abbott U. S. R., 212; Griffin v. Wilcox, 21 Ind., 383; 
In re Kemp, 16 Wis., 382; In re Oliver, 17 id., 703. 
2 See In re Murphy, Woolworth, 141. 



1078 WAR I D 1. 

issued a proclamation suspending the privilege of the writ generally, 
and 'throughout the United States' in all cases "where, by the 
authority of the President of the United States, military, naval, and 
civil officers of the United States, or any of them, hold persons under 
their command or in their custody, either as prisoners of war, spies, or 
aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled 
or drafted or mustered or enlisted in, or belonging to, the land or naval 
forces of the United States, or as deserters therefrom, or otherwise 
amenable to military law, or the rules and articles of war, or the rules 
or regulations prescribed for the military or naval services by author- 
ity ot the President of the United States, or for resisting a draft, or for 
any other offense against the military or naval service." In a case in 
which, by the operation of this last proclamation, the writ was sus- 
pended, lield tliat any judge or court, whether of the United States or 
of a State, would be required to dismiss the writ, on being advised (in 
the manner and form indicated in the act of Mar. 3, 1863, sec. 1) that 
the party sought to be relieved was "detained as a prisoner under the 
authority of the President." R. 15, 157, May, 1865. 

I C 12 a. By a proclamation of December 1, 1865, the President 
"revoked and annulled" the suspension (by ploclamation of Sept. 
15, 1863) of the privilege of the writ in certain States, including New 
York. Held, that such revocation did not operate to authorize the 
discharge, by a court of that State, of a prisoner detained in military 
custody under color of the authority of the United States. R. 21, 92, 
Dec, 1865. 

I D 1. Under the terms of the protocol of August 12, 1898, and of 
the treaty of peace signed at Pans on December 10, 1898, all of the 
immovable property on the island of Porto Rico belonging to the 
general government and as such "to the Crown of Spain," together 
with certain property in the nature of public records, was ceded to the 
United States. All other movable property of the general govern- 
ment for which no special provision was made either in the protocol 
or treaty remained tne property of Spain to be disposed of as desired 
by the latter. Certain articles of this movable property (office furni- 
ture) which it appeared had been, like the public buildings and other 
public works of the island, paid for from appropriations collected from 
the island, were ordered purchased from the Spanish Government out 
of the insular funds collected by the United States. Held that the 
payment could legally be made as ordered, the property belonging to 
Spain and not to the "island government," there never having been 
an independent government for Porto Rico. C. 6828, Aug., 1899. 

1 E 1. Martial law is defined as military authority exercised in 
accordance with the rules and usages of war,^ and "Martial Law at 
Home," (or as a domestic fact) as military power exercised in time 
of war, insurrection, or rebellion, in parts of the country retaining 
their allegiance, and over persons and things not ordinarily subject 
to it.^ Martial law as a domestic fact presupposes a condition in 
wliich the civil courts are unable to enforce their processes, and is 
justffied by the necessity of society's protecting itself by suppressing 
the resistance, so as to enable the civil courts to fulfill their proper 
functions. It is the suspension of all law but the will of the military 

^ Instructions for the Annies of the United States in the Field, G. O. 100, A. G. O., 
1863. 

2 Manual for Courts-Martial (1908), p. 5. 



i 



WAR I E 1 a. 10Y9 

commanders entrusted with its execution, to be exercised according 
to their judgment, the exigencies of the moment and the usages of the 
service, with no fixed or settled rules of law, no definite practice, and 
not bound by even the rules of the military law.^ When martial law 
prevails the civil power is superseded by the military power, and the 
ordinary safeguards to individual rights are for the time being set 
aside, ^ but it is hicumbent on those wdio administer it to act in ac- 
cordance with the principles of justice, honor, and humanity and the 
laws and usages of war."*^ C. 8383, May, 1900. 

I E 1 a. Martial law is a modified degree of the law of war, or a 
law assimilated to the latter, called into exercise temporarily and 
for a specific purpose, at a time of war or pubUc emergency, and 
generally in a place or region not constituting enemy's country, or 
under permanent military government.* Whether proclaimed by 
the President or declared by a competent military commander, mar- 
tial law overrides and supersedes, for the time being, all civil law 
an<l authority, except in so far as the same may be left operative by 
the terms of the announcement,'^ or the action or acquiescence of the 
dominant power. Wliile the status of martial law continues, the 
military power, instead of being subordinate, is superior to the 
civil power, and the natural and normal condition of things is thus 
reversed. But while martial law will warrant a resort by the com- 
mander^ at his will, to summary and arbitrary measuies, by which the 
liberty of the citizen ma}'' be restrained, his action coerced, and his 
rights suspended, it can not be availed of by subordinates to justify 
acts of unnecessary violence, personal persecution, or wanton wroiig.* 
R. 12^ 105, Dec, 1864; 19, 4I, Oct., 1865; C.8383, May, 1900. 

IE J a (1). Under martial law the military power is supreme. 
Held that the only limitation to it is that it must be exercised in 
accordance with the principles of justice, honor, humanity, and the 
laws and usages of war. C. 8383, May 26, 1900. 

I E 1 b. A proclamation declaring that a "state of insurrection and 
rebellion" exists in a particidar region of a State is in effect a declara- 
tion of martial law, but such declaration is not essential. Martial law 
as a domestic fact exists when, the resistance to law having reached 
such a stage that the civil autiiorities are })owerless to cope with it, 

' Pomeroy's Constitutional Law, sec. 712; Finlason on Martial Law, p. 107. 
" See Lieber's Use of the Army in Aid of the Civil Power. War Department Doc- 
ument 64. 

* As to the rights, duties, and obligations of a military commander who is directed 
to suppress an insurrection in a State, see Birkhimer's Military Government and 
Martial Law, pp. 395-399. 

* Note the distinction between military government proper and martial law as illus- 
trated in Milligan's Case, 4 Wallace, 142. The "martial law" referred to in the test 
is defined in the Manual for Courts-Martial (1908), p. 5, as "Martial Law at Home 
(or, as a domestic fact); by which is meant military power exercised in time of war, 
insurrection, or rebellion, in parts of the country retaining their allegiance, and over 
persons and things not ordinarily subjected to it." 

* Luther v. Borden, 7 Howard, 13-14; United States v. Diekelman, 2 Otto, 526; In 
re Egan, 5 Blatch., 319, 321; Griffin v. Wilcox, 21 Ind., 376; Johnson v. Jones, 44 111., 
153; Li re Kemp, 16 Wis., 382; Clodo (Military and Martial Law), 183-191, Hough 
(Precedents), 514, 549; G. O. 100, War Dept., 1863, Sec. I. 

" "But the existence of martial law does not authorize general military license, or 
place the lives, liberty, or property of the citizens of the States under the unlimited 
control of every holder of a military commission." Despan v. Olney, 1 Curtis, 308. 
A.nd see Luther v. Borden, 7 Howard, 14; G. O. 100, War Department, 1863, Sec. I, 
par. numbered 4. 



1080 WAR I E 1 C. 

the military take control to suppress the resistance and restore the 
civil authority. Such martial law ceases when the necessity for it 
ceases. It ceases when the civil authorities resume their unobstructed 
functions, although the miUtary may be present to aid them if the 
need of such aid should arise. C. 8383, May, 1900. 

I E 1 c. Wliere a city or district has been put under martial law by 
the commanding general, he becomes its supreme governor, and, in 
governing, is ordinarily to be presumed to be empowered to exercise 
the same authority which the President might have exercised had lie 
proclaimed martial law therein.* R. 10, 669, Dec, 1864. 

I E 1 c (1). In view of the President's proclamation of July 5, 1864, 
suspending the writ of habeas corpus, and establishing martial law in 
the State of Kentucky, held (Dec, 1864) to be competent for the 
general commanding the military district of Kentucky, if in his 
judgment the effective maintenance of martial law and the accomplish- 
ment of the ends proposed by its declaration required it, to restrain, 
by such means as in his discretion might be deemed needful, the 
prosecution of suits instituted against United States officers for 
acts done in the line of their duty, and having the effect (indicated in 
the proclamation) of impeding "military operations," and of embar- 
rassmg "the constituted authorities of the Government of the United 
States." R. 10, 669, Dec, I864. 

I E 1 d. The occasion for the exercise of martial law properly ceases 
when the emergency has passed which made it necessary or expedient .^ 
So,, the commander of the Middle Military Department having, in 
view the presence in the department of an army of the enemy, pro- 
claimed, by order of June 30, 1863, a state of martial law in Baltimore 
City and County and the counties of the western shore of Maryland, 
with the assurance expressed that such status should not extend 
beyond the necessities of the occasion, held that as the exigency had 
long ceased to exist, the order, though never in terms revoked, should 
properly be considered as no longer operative. R. 12, 422, June, 
1865. 

I E 1 e. The President's proclamation of September 24, 1862, sub- 
jected to martial law and trial by military courts throughout the 
United States certam classes of persons named, and suspended the 
privilege of the writ of habeas corpus as to all persons imprisoned 
under military sentence or by military authority "during the rebel- 
lion." The further executive proclamation of September 15, 1863 
(issued pursuant to the act of Mar. 3, 1863), suspended the privilege 
of the \vrit tlu'oughout the United States as to certain classes of persons 
enumerated. The further proclamation of December 1, 1865, in re- 
voking generally the suspension declared by the proclamation of 
September 15, 1863, excepted from such revocation, and left the sus- 
pension in force in, certain States and Territories specified and "in 
the District of Columbia." The proclamation of April 2, 1866 (which 

• In Clark v. Dick, 1 Dillon, 8, the court, refening to the placing of the city of St. 
Louis under martial law by the department commander, Maj. Gen. Halleck (by 
G. O. 34, Dept. of the Missouri, 18G1), observes: "That this officer represented 
the President, who is Commander in Chief of the Army, and was vested with all the 
authority as such military commander that belonged to the President, can not be 
doubted." 

■^ In re Egan, 5 Blatch., 319, 322; In the matter of Martin, 45 Barb., 145; Hough 
(Precedents), 535. 



WAR I E 1 f . 1081 

in one of its preambles declared that martial law and the suspension 
of the writ of habeas corpus were "dangerous to public liberty, incom- 
patible with the individual rights of the citizen," etc., and "ought not 
to be sanctioned or allowed except in cases of actual necessity," etc.), 
announced the rebellion as at an end throughout the United States, 
the State of Texas only excepted. Held, m view of these proclama- 
tions, that, so far as concerned the exercise of military authority and 
jurisdiction, martial law might be considered to have existed in the 
District of Columbia from September 24, 1862, as to the classes of 

Eersons indicated in the proclamation of that date, and from Septem- 
er 15, 1863, as to other classes of persons indicated in the proclama- 
tion of that date, to April 2, 1866, tlie date of the proclamation issued 
at the end of the war.' R. 35, 177, Feb., 187 A- 

I E 1 f. When the United States is called upon to protect a State 
against "domestic violence," its military forces act in aid of the State 
authorities to the extent necessary to reestablish the civd authority; 
they are not however under the command of the State authorities, but 
of their military officers under the President. To this extent they are 
an independent force, operating under the orders of the President, to 
perform a duty to the State imposed upon the United States by the 
Constitution.2 G. 8383, May, 1900. 

I F 1. Held, in a case in which a State judge had discharged a sol- 
dier enlisted for the war on the ground that the war had ei)ded, that 
the judiciary, even of the United States, would not be empowered to 
determine, origmally, the question whether the war had terminated, 
but upon such question would properly await and abide by the action 
of the President or Congress.^ R. 18, 293, Oct., 1865. 

I F 2. Held that the status of war between Spain and the United 
States terminated on the date of the exchange of ratifications of the 
treaty of peace." C. 12488, Apr. 29, 1902; 12881, July 1, 1902; 
15154, Aug. 27, 1903; 16064, Apr. 21, 1904; 16254, May 25, 1904; 
16754, Bee. 23, 1903; 17349, Jan. 5, 1905; 19734, May 15, 1906. 

' "It would seem to be conceded that the power to suspend this writ" (the writ of 
habeas corpus) "and that of proclaiming martial law, include one another. * * * 
The right to exercise one power implies the ri.,ht to exercise the other." 9 Am. Law 
Reg., 507 and 508. And see Ex parte Field, 5 Blatch., 82. 

^ See Report No. 1999, House of Representatives, 56th Cong., Istsess. (Coeur d'Alene 
labor troubles). 

^ It has subsequently been similarly held in repeated cases. See Phillips v. Hatch, 
1 Dillon, 571; Semmes v. City Fire Ins. Co., 36 Conn., 543; Conley v. Supervisors, 2 
West Va., 416; Perkins v. Ro^jers, 35 Ind., 124; Sutton r. Tiller, 6 Coldw., 595; also 
United States v. Anderson, 9 Wallace, 56, 71. 

In the case of The Protector (12 Wallace, 700) it was held by the Supreme Court 
that the war began in all the insurrectionary States, except Virginia and North Caro- 
lina, on April 19, 1861, the date of the first "proclamation of intended blockade," 
and in those two excepted States on April 27th, 1861, the date of the second such 
proclamation; further that the war ended in all the States except Texas on April 2d, 
1866, the date of the proclamation declaring the war at an end as to all the other 
States, and in Texas on August 20th, 1866, the date of the proclamation declaring the 
war at an end in that State and generally. And see Adger v. Alston, 15 Wallace, 
555, and Burke v. Miltenberger, 19 id., 519, in which the ruling in The Protector is 
affirmed bv the same court; also United States r. Anderson, supra. 

*See Ribas y Hijo, 194 U. S., 315. See also ex parte Ortiz, 100 Fed. Rep., 955, 
where it is held that : "As affecting private right a treaty between two nations becomes 
effective only from the date when the ratifications by the respective Governments 
are exchanged." See also U. S. v. Arredonde, 31 U. S., 691, 748; Haver v. Yaker, 
76 U. S., 32. 



1082 WAE WAR POWER. 

I F 3. In the proclamation of the President of the United States, 
July 4, 1902, there occurred the following provisions: "Whereas, 
many of the inhabitants of the Philipj^ine Archipelago were in insur- 
rection against the authority and sovereignty of Spain at divers 
times from August, 1896, until the cession of the archipelago from 
that Kingdom to the United States of America, and since such session 
many of the persons so engaged in insuri'ection have, until recently, 
resisted the authority and sovereignty of the United States: And 
whereas, the insurrection against the authority and sovereignty of 
the United States is now at an end, and peace has been established 
in all parts of the archipelago except in the country inhabited by the 
Moro tribes, to which tJiis proclamation does not app]}'"." Held that 
the war status in the Philippines except in the Moro country, was 
terminated on the date of the publication of the above proclamation, 
viz, July 4, 1902. 0. 13743, Dec. 2, 1902; 12184, Feb. 12, 1903; 
14348, Mar. 25, 1903; 15754, Dec. 24, 1903; 16859, Sept. 7, 1904. 

I F 4. Held that the war in China ended May 12, 1901, the date 
fixed in General Order No. 19, Headquarters China Relief Expedition 
at Pekin, China. C. 17609, Mar. 22, 1905. 

I G 1. War correspondents as a class are noncombatants within 
the theater of military occupation. Held that they fall within the 
jurisdiction of the commanding general of tlie army which they 
accompany, and that he may issue rules or regulations wliich govern 
their conduct while within the limits of his command. C. 16351, 
May 19, 1904. 

WAR COLLEGE. 

Appropriation See Appropriations XXII. 

Army service See ('ontracts VII E 3. 

Students See Absence I B 1 g (2) (a). 

WAR CORRESPONDENT. 

Military control over See War I G 1. 

WAR DEPARTMENT. 

See Secretary of War. 

Bonds See Bonds I O ; P. 

Chief 0/ Coast Artillery not part of See Civilian employees VIII A. 

Collection of private debts See Private debts IV. 

Contracts under seal See Contracts XXXVI. 

Discharge of minor See Discharge XII D 1; 2. 

Erroneous discharge corrected See Discharge XIV A 1; B 2; D 5; XV D 

Ic. 

Fixing age of minor See Discharge XII B 1. 

Improper attempts to influence See Communications IV B 1. ^ 

Nunc pro tunc discharge can not he issued. .See Discharge XIV A 2. 

Official papers in See Official records I A to B. 

Policy as to deserters See Discharge II B 2 a. 

Policy when deserter's sentence is set aside. . .See Discharge III B 5 a. 
Policy as to discharge without honor See Discharge III B ; B 1 to 5 a. 

WAR POWER. 

See War I C 8 a to b. 



WARRANT WITNESS FEES. 1083 

WARRANT. 

Of noncommissio7ied officer See Rank I D to E. 

! Search imrrant See Articles of War LIX G 1 a. 

Command V A 3 e; B 2 b; 3. 

WAR SERVICE. 

Counts double for retirement of soldier See Retirement II A 4 to 5. 

WARRANTIES. 

See Contracts XXYI. 
WATCHWORD. 

See Articles of War XLIV. 

WATER COURSE. 

Claim for diversion of See Claims II. 

WATER PLANT. 

Mains and hydrants in street See Appropriations LIII. 

On target range See Militia YI C 1 g. 

WATER POWER. 

License to use See Public property I A 1. 

WHOLLY RETIRED. 

Examining board See Retirement I B 6 c (2) ; (3). 

Retiring board See Retirement I N to O. 

WIFE. 

Abuse of. See Articles of War LXI B 13; 14. 

Evidence by See Discipline X A 5 ; B 1 ; la. 

Siipplies purchased from soldier's See Contracts XV A 4. 

WITHDRAWAL. 
Of bids See Contracts XI B; C. 

WITNESS. 

Before surveying officer See Public property I F 3 a. 

Civil court See Civil authorities I A; A 1. 

Civilian See Civilian employees I \^ to V. 

Discipline IV B 4 a. 

Expert See Discipline IV B 3 d (1). 

Insane person See Discipline IX F 3 a. 

List of. See Discipline II E. 

Military court See Discipline X A to L. 

WITNESS FEES. 

Board of investigation See Discipline XVIII C. 

Civil courts See Civil authorities I B 1. 

Retired officer See Retirement I M 2. 



1084 WORDS AND PHRASES. 

WORDS AND PHRASES.* 

" Accouterments" applies in the military service to those parts of the soldier's personal 
equipment which are issued by the Ordnance Department in connection with his 
arms and ammunition, such, for example, as belts and cartridge pouches. C. 18944, 
Dec. 9, 1905; 18764, Oct. 15, 1906; 18944, Dec. 12, 1905. 

"A court of justice " defined See Articles of War LXXXIV. 

'^Active duty" defined See Retirement I K 1. 

^'Active service " defined See Retirement I B 2 a. 

^'Actual service" defined See Retirement II A 4 b (1). 

^^Any of U. S. " under fifty-ninth article 

of war defined See Articles of War LIX F. 

^^Arms" defined See Arms I. 

"At or near" defined See Discipline II D 9 a. 

" Authorized confinement" as used in Article IV of General Order 16 of 1895 (now Art. 
IV, G. O. 42 of 1901), is not limited to the maximum authorized. Confinement for a 
period less than the maximum is also authorized confinement. The article means 
that when the maximum term may be more than six months, dishonorable discharge 
with forfeiture of pay and allowances may be awarded with whatever confinement, 
within the prescribed limit, the court may adjudge. C. 1551, July, 1895. Held 
also that such "authorized confinement" is limited to the specific confinement 
authorized by Article II, or if not provided for therein, by the custom of the service; 
that is to say, such confinement may not be increased by substitution of confine- 
ment for forfeiture, or on account of previous convictions, the same not being pro- 
vided for by the terms of Article IV. C. 8543, July, 1900. 

"Authorized" construed See Laws I B 2. 

Navigable waters X A 1. 

'Burglary " defined See Articles op War LX 1 1 C 7*. 

'Cashiering" defined See Disclpline XII B 3 i. 

'Civil office" defined See Office IV A 2 c. 

' Civil War " defined See War I A 3. 

'Competent authority" to muster out See Volunteer Army IV (' 1 a (2) (a). 

' Competition " defined See Army bands I A 1. 

'Corps" defined See Insignia op merit II H. 

Crew of transport are civilian employees. . .See Civilian employees V A. 

'Crimes" construed See Articles op War LXVI A. 

'Crimes" defined See Articles of War LXII A. 

'Day" or "days" when used in the maximum i^unishment order has reference to a 
day of twenty-four hours. P. 53, 149, Apr., 1892. 

'Disbursing officer " defined See Public money II A. 

' Electric fixtures" include meters See Appropriations XLVI. 

'Embezzlement " defined See Section 5488, Revised Statutes, and 

Articles of War LXII C 2. 

'Emergency" defined See Army I G 3 d (3) {a). 

'Enlistment" defined See Enlistment I A. 

'Established" construed See Military instruction II B 1 c. 

' Exercise functions of civil office" defined. .See Office IV A 2 b. 

' False swearing " defined See Articles of War LXII C 9. 

'Fine" differentiated from "stoppage" .. .See Pay and allowances III B 5; D 3. 

'Flag" described See Flag I. 

'Forfeiture" differentiated from "stop- 
page" See Pay and allowances III B 5. 

'Fraudulent enlistment " defined See Enlistment I A 9 a. 

'Grant" distinguished from "license" See Public property I A 2. 

'His arms or ammunition" described See Articles of War XLII B. 



' No synopsis of words and phrases is presented as in view of the fact that most of 
the citations are cross references, it is deemed better to arrange the words and phrases 
alphabetically. 



WORDS AND PHRASES. 1085 

' His clothing " defined See Pay and allowances II A 3 a to b. 

Articles of War XVII A. 

'Imperfect war " defined See War I A 2. 

' Incident of the service " defined See War I B 2 c. 

' Indian country" defined See Intoxicants 11*1 A. 

' Indian war " defined See War I A 5. 

^ Infamous criminal offense." defined See Articles of War III A. 

'In open marlceV defined See Contracts VII E 5. 

' In their oum right" de^nad See Insignia op merit III A i. 

' Intoxicating liquor " defined See Intoxicants I . 

'It shall be lawful" or "is authorized and 
empowered" equivalent to "may" in 
river and harbor act See Navigable waters X A 1. 

' Jeopardy " defined See Articles of War TII A. 

'Laio of war " defined See War I C 1 . 

'Laws of the land" under. fifty-ninth arti- 
cle of War defined See Articles of War lilX 0. 

'Legal representative " defined See Articles of War OXXVII B. 

'Line of duty" relation to "incident of the 
service " See Retirement I B 2 c. 

'Locality " defined See Contracts XLIV. 

' Martial law " defined See War I E 1. 

The word "may" equivalent to "must" or 
"shalV See Laws I B 1 a. 

' Military expedition" defined See Army II K 1 a. • 

' Military stores," meaning of See Public property IX A 1, 

' Misbehavior before the enemy" deficnhed.. See Articles of War XLII A. 

' Mixed war " defined See War I A 4 . 

' 3/oni^ " in a lease construed See Public property VII A3. 

'Month " or "months," employed in a sentence, is to be construed as meaning calendar 
month or months; the same significance being given to the term as is now commonly 
given to it in the construction of American statutes in which the word is employed.' 
The old doctrine that "month" in a sentence of court-martial meant lunar month, 
has long since ceased to be accepted in our military law. R. 26, 374, Jan., 1868. 

" Mutiny " defined See Articles of War XXII A. 

"Navigable waters" described See Navigable waters I A. 

"Necessary" defined as used in art of July 

7, 1884 (23 Stat. 227) ".See Army— I B to C. 

" 0^'ce " in bond means what See Bonds II G. 

"Officer" ("superior officer") in the twenty-first as in all other articles of war means 
commissioned officer. 7?. ,9, 90, May, 1864. (See also the provision introductory to 
the Articles of War of sec. 1342. R. S., in which it is specified that "the word officer, 
as used therein, shall he tinderstood to designate commissioned oflicers.") 

'Official record" defined See Insignia of merit I A 2 a. 

'On or about" defined See Discipline II D 9 a. 

'Participation in joint encampment" da- 
fined See Militia VI B 2 c. 

'Penitentiary " See Articles of War XCVII C. 

'Perfect war " defined See War I A 1. 

'Permanent disability " defined See Retirement I B 2 b. 

'Previous conviction" defined See Discipline XII B 1 a (I) (a). 

'Private indebtedness" defined See Private debts I. 

'Public money," what constitutes See Public money I to II. 

'Pm6^m; o^r<:" defined See Office I. 

'Pwrc^ase" defined See Public property II A; V E 1 d. 

'Regular Army " See Army I G 1. 

'Remission" defined See Pardon XVI A. 

'Replace" construed See Insignia of merit I A 2 c. 

' See Moore v. Houston, 3 Sergt. & Rawle, 184; Sedgwick, Cons. Stat, and Const. L., 
2d ed., p. 358; also 1 Rev. Stats, of New York, sec. 4. See R. S., N. Y., 1896, 
Collins, vol: 1, p. 116, sec. 26. 



1086 WORDS AND PHRASES WRIT OF REPLEVIN. 

"Reputable person. " Held, that a man who engages in the illicit trade of purchasing 
clothing from soldiers is not a "reputable person" as that term is used in the Regula- 
tions (par. 1406, A. R., 1910) in connection with witnessing transfers of final state- 
ments. C. 25191, June 25, 1909. 

"Service with troops" defined See Retirement I K 2 c. 

"Stealing" defined See Articles of War LX C. 

" Suitable mount" defined See Pay and allowances I B 7 b. 

"Superintendents national cemeteries are See Civilian employees V B. 
civil officers." 

" Theater ticket" defined See Uniform I B 2 a. 

"Volunteer Army" described See Volunteer Army I to II. 

"War" defined See War I. 

WRECK OR DRIFT STUFF. 

See Claims VI E. 
See Public money I O. 
Sale of. See Public property IX A 2 a (3). 

WRECKS. 

Appropriation for removing See Appropriations XXXVIII. 

Removal of ... ! See Navigable waters VII to VIII. 

WRIT OF ATTACHMENT. 

By judge advocate See Discipline X K to L. 

On pension money See Pensions II A. 

Public money See Public money II C to D. 

Summary court can not issue See Discipline XVI E 1. 

WRIT OF REPLEVIN. 

Receipt of by commanding officer See Army II K 1 e (2). 



APPENDIXES I AND II. 1087 



APPENDIXES. 



Appendix I. 

REFERENCES TO THE CONSTITUTION OF THE UNITED STATES. 

CONSTITUTION. 

Art. 1, sec. 8 See Militia I A 1; I E; II A. 

Laws II A 1 b. 

Art. 1, sec. 8, pars. 11 to IG See War I C 8 a. 

Art. 1, sec. 8, par, 14 See War I 8 c (1) (6). 

Art. 1, sec. 8, par. 16 See Militia XIII A. 

Art. 1, sec. 8, par. 17 See Public property V to VI. 

Art. 1, sec. 9, par. 2 See War I C 12. 

Art. 1 , sec. 9, par. 7 See Pay and allowances III C 1 f (1). 

Art. 1, sec. 9, par. 8 See Army I C 3. 

Art. 1, sec. 10 .' See Militia IV A. 

Art. 2, sec. 2, par. 1 See Pardon I A. 

Art. 2, sec. 2, par. 2 See Office III A 4 c; E 1; F 1. 

Art. 3, sec. 2, par. 3 See Office III A 3. 

Art. 4, sec. 3, par. 2 See Public property I A to B; III A 1; 

VH2b. 
Art. 4, sec. 4 See Army II A; A 1; E. 

AMENDMENTS. 

Art. 2 See A rms I. 

Art. 5 : See War I C 6 c (1). 

Discipline V B. 

Articles of War Oil A. 
Art. 6 See Discipline VIII G 2 a. 

Articles of War XCI H. 

Art. 8 See Discipline XV F 5. 

Art. 14 See Enlistment I C 1 b. 



Appendix II. 
REFERENCES TO LAWS AND JOINT RESOLUTIONS. 

May 8, 1792 (1 Stat. 271) See Militia IV A. 

Jan. 25, 1828 (4 Stat. 246) See Public money IV to V. 

Mar. 1, 1843 (5 Stat, 606) See Residence II A. 

Mar. 3, 1847 (9 Stat. 186) See Insignia of merit II I. 

May 10, 1854 (10 Stat. 277) See Office III E 3. 

Aug. 4, 1854 (10 Stat. 575) See Insignia of merit II I. 

July 22, 1861 (12 Stat. 261) See Office V A5b (2). 

Volunteer Army II F 1 a (1). 

July 22, 1861 (12 Stat. 270) See Office IV E 2 a (1); V A4c. 

Aug. 3, 1861 (12 Stat. 288; See Discharge XIV D 4. 



1088 APPENDIX II. 

Aug. 6, 1861 (12 Stat. 318) See Office V A 4 c. 

Dec. 24, 1861 (12 Stat. 330) See Articles op War LXXII D 1. 

July 12, 1862 (12 Stat. 623, 751) See Insignia of merit I A 1 a; 2 b; c; 2 e 

July 17. 1862 (12 Stat. 594) See Army I G 3 a (4) (a) [1]. 

Discharge III F 2. 

Office V B 7 c. 

Volunteer Army IV D 1 a (2) (b) [2]. 
Mar. 3, 1863 (12 Stat. 731) See Desertion XVI Dig. 

Enlistment II A; B 1; 2; C to E. 

Mar. 3, 1863 (12 Stat. 751) See Insignia oPMERiTlAlto2;2b;d(l);e. 

Mar. 3, 1863 (12 Stat. 735) '. See Public property IX B 1. 

Discipline XVII B 2 a (1). 

Mar. 12, 1863 (12 Stat. 821) See Discipline XVII B 2 a (1). 

Feb. 24, 1864 (13 Stat. 8) See Enlistment II B 1. 

July 2, 1864 (13 Stat. 365) See Public property VI E. 

July 4, 1864 (13 Stat. 397) See Discipline I C. 

Mar. 3, 1865 (13 Stat. 488) See Line of duty II A 4 

July 25, 1866 (14 Stat. 241) See Militia II A. 

July 28, 1866 (14 Stat. 337) See Laws II A 1 a. 

July 20, 1868 (15 Stat. 125) See Office IV E 1 b. 

Mar. 3, 1869 (15 Stat. 318) See Army I E 4. 

June 22, 1870 (16 Stat. 162) See Army I B 5 a. 

July 15, 1870 (16 Stat. 319) See Office I A 2 e (6) (a); IV E 2 a (1). 

Mar. 3, 1873 (17 Stat. 535) See Command I C. 

Apr. 20, 1874 (18 Stat. pt. 3, 33) See Public money VII. 

June 20, 1874 (18 Stat. 127) See Insignia of merit I B. 

June 22, 1874 (Revised Statutes) See Laws I A 1. 

June 22, 1874 (18 Stat. 144) See Appropriations XXVIII. 

June 23, 1874 (18 Stat. 215) See Insanity I A 2. 

June 23, 1874 (18 Stat. 203) See Army I D 3 a. 

Mar. 3, 1875 (18 Stat. 410) See Public money II A. 

Mar. 3, 1875 (18 Stat. 455) See Contracts XXIII G. 

Mar. 3, 1875 (18 Stat. 479) See Articles of War LX F. 

Command V A 3 g. 

Mar. 3, 1875 (18 Stat. 511) See Public property VI E 1, 

Mar. 3, 1875 (18 Stat 517) See Tax III E. 

July 29, 1876 (19 Stat. 102) See Absence I B 1 m; m (1); n. 

Army I G 3 a (2). 

Aug. 15, 1876 (19 Stat. 203) See Line op duty II A 3; 3 a (1). 

Feb. 27, 1877 (19 Stat. 252) See Line of duty II A 3; 3 a (2). 

Mar. 2, 1877 (19 Stat. 268) See Laws I A 1. 

Mar. 3, 1877 (19 Stat. 335) See Communications II A 2 a. 

Mar. 16, 1878 (20 Stat. 30) See Discipline XI A 14 b. 

Apr. 10, 1878 (20 Stat. 36) See Contracts VI C. 

June 18, 1878 (20 Stat. 149, sec. 2) See Rank III A. 

June 18, 1878 (20 Stat. 150) See Appropriations XIV. 

Pay and allowances II A 2 d (1); (2). 
June 18, 1878 (20 Stat. 152, sec. 15) See Army II B; C; F 1. 

Territories III B. 

June 18, 1878(20 Stat. 165) See Insignia of merit I B. 

Mar. 3, 1879 (20 Stat. 412) See Public property I B. 

June 23, 1879(21 Stat. 35) See Army II C 1. 

June 7, 1880(21 Stat. 308) See Laws I A 1. 

Feb. 24, 1881 (21 Stat. 347) See P.vy and allowances II A 2 d {D; 

(1) («); (2). 

May 4, 1882 (22 Stat. 57) See Insignia op merit J B. 

May 6, 1882 (22 Stat. 58) See Desertion V B 12. 

June 30, 1882 (22 Stat. 117) See Army I G 3 a (2). 

Retirement I A 2 a. 

July 31, 1882 (22 Stat. 181) See Army II C 1. 

Aug. 2, 1882 (22 Stat. 204) See Public money I C. 

Aug. 5, 1882(22 Stat. 255) See Army I G 2 b (1). 

Civilian employees VIII A. 

Aug. 7, 1882 (22 Stat. 347) See Desertion XVI D 1 a. . 

Mar. 3, 1883(22 Stat. 457) See Army I G 3 a (2). 

Rank IV B. 
Mar. 3, 1883 (22 Stat. 459) See Laws I B 9. 



APPENDIX II. 1089 

Mar. 3, 1883 (22 Stat. 487) See Bonds III F. 

Contracts XI E. 

Mar. 3, 1883 (22 Stat. 488) See Contracts VI C. 

Mar. 3, 1883 (22 Stat. 563, sec. 3) See Civilian employees I B 4; C 1. 

Mar. 3, 1883(22 Stat. 567) See Retirement I G 3 b. 

Mar. 3, 1883 (22 Stat. 616) See Private debts I. 

Mar. 3, 1883 (22 Stat. 625) See Patents VII A 

Apr. 18, 1884(23 Stat. 11) See Uniform I C. 

May 1, 1884 (23 Stat. 17) See Contracts XIII A; E. 

May 17, 1884 (23 Stat. 24) See Army II B. 

May 21, 1884 (23 Stat. 28) See Territories III E. 

July 5, 1884 (23 Stat. 103) See Public property III F 3; V D 1. 

Julys, 1884(23 Stat. 104) See Public property VI C 1; VIII to IX. 

Julys, 1884(23 Stat. 109) See Army I E 2 b. 

Contracts VI D. 

July 5, 1884(23 Stat. 112) See Office III A 6 c. 

Julys, 1884 (23 Stat. 119) See Desertion XVI D 1 a. 

July 5, 1884 (23 Stat. 148, sec. 8) See Navigable waters I; IV G. 

July 5, 1884 (23 Stat. 158, sec. 3) See Communications II A 1; 2 a. 

Militia XIV A. 

July 7, 1884 (23 Stat. 227) See Army I B 2 h (1). 

Feb. 14, 1885 (23 Stat. 305) See Retirement II A 2. 

Jan. 6, 1885 (23 Stat. 516) See Civilian employees I D 3. 

Mar. 3, 1885 (23 Stat. 362) See Army II C. 

May 17, 1886 (24 Stat. 51) See Desertion XVI D la; 2. 

June 30, 1886 (24 Stat. 96) See Contracts VI B 

Dec 20, 1886 (24 Stat. 351) See Absence I B 1 k. 

Army I D 6. 

Feb. 12, 1887 (24 Stat. 401) See Militia IX B 1; X D. 

Feb. 17, 1887 (24 Stat. 405) See Appropriations I A. 

Feb. 23, 1887 (24 Stat. 644) See Civilian employees I D 3; 6. 

Mar. 1, 1887 (27 Stat. 435) See Army I G 3 d (5) (a). 

Volunteer Army III B 1. 

Apr. 24, 1888 (25 Stat. 94) See Navigable waters X D; D 1. 

May 1, 1888 (25 Stat. 112) See Public money I P. 

June 29, 1888 (25 Stat. 209) See Navigable water V E 3. 

Aug. 1, 1888 (25 Stat. 357) See Navigable waters X D. 

Aug. 11, 1888 (25 Stat. 417) See Public property VII B 1 to 2. 

Aug. 11, 1888 (25 Stat. 423, sec. 3) See Contracts VI C; VII F to G. 

N.WIGABLE WATERS X C; F 2. 

Aug. 11, 1888 (25 Stat. 424, sec. 9) See Navigable waters I; IV A; C; G. 

Aug. 11, 1888 (25 Stat. 425, sec. 12): See Navigable waters I A 1 a (1); VI B. 

Aug. 27, 1888 (25 Stat. 450) See Soldiers' Home III. 

Sept. 10, 1888 (25 Stat. 473) See Public property VI E 1. 

Sept. 10, 1888 (25 Stat. 474) See Navigable waters III E. 

Sept. 22, 1888 (25 Stat. 484) See Laws I B 5. 

Sept. 26, 1888(25 Stat. 491) See Bonds IV K; M. 

Military instruction II B 1 a; c; 2 a; 
b; e(l). 

Feb. 8, 1889 (25 Stat. 657) See Army I G 3 d (7) (a) [2]. 

Feb. 16, 1889 (25 Stat. 672) See Official records I C 1 a. 

Mar. 1, 1889 (25 Stat. 772) See Militia XVI A; F to I 1. 

Mar. 1, 1889 (25 Stat. 774, sec. 18) See Militia XVI B. 

Mar. 1, 1889(25 Stat. 779) See Militia XVI E; I 6; J. 

Mar. 2, 1889 (25 Stat. 869) See Desertion XVI D 1 to 2. 

Line of duty TI A 2 a (4) (a) [1]. 

Mar. 3, 1889 (30 Stat. 1324) See Army II B. 

Apr. 9, 1890 (26 Stat. 50) See Laws I A 1. 

Apr. 11, 1890 (26 Stat. 54) See Articles op War CIII F 1. 

Apr. 14, 1890 (26 Stat. 55) See Discharge XIV B 1. 

June 13, 1890 (26 Stat. 154) See Government agencies II A 1, 

June 16, 1890 (26 Stat. 157) See Desertion XVI A 1. 

Discharge VI D 6. 

Enlistment I D 3 b; c (18); (18) (d). 
June 16, 1890 (26 Stat. 158) See Appropriations XXXV. 

Desertion V A; A 1; 1 a; B 14 a. 

Discharge VI D 1 to 3. 
93673°— 17 69 



1090 APPENDIX 11. 

June 20, 1890 (26 Stat. 163) See Enlistment I A 1. 

Aug. 2, 1890 (2G Stat. 316 See Public property II A 1. 

Aug. 19, 1890 (26 Stat. 333) See Army I B 2 b (3) (a). 

Stpe. 19, 1890 (26 Stat. 426) See Navigable waters I; I A 1 a (2). 

Sept. 19, 1890 (26 Stat. 453, sec. 4) See Navigable waters IV; IV A; 1; B; 

C;F. 

Sept. 19, 1890 (26 Stats. 453 ,sec. 6) ...See Navigable .vaters V E 1. ^ 

Sept. 19, 1890 (26 Stat. 454, sec. 7) See Navigable waters IV E; V D 2; 3. fl 

Sept. 19, 1890 (26 Stat. 454, sec. 9) See Navigable avaters II D 1 a; III. .S 

Sept. 19, 1890 (26 Stat. 454, sec. 10) See Navigable waters IX; IX A; 1. fl 

Sept. 19, 1890 (26 Stat. 455, sec. 12) See Navigable waters VI A. ^ 

Sept. 26, 1890(26 Stat. 483) See Laws I B 4 a. 

Sept. 27, 1890 (26 Stat. 491) See Discipline XII B la. 

Sept. 30, 1890 (26 Stat. 504) See Enlistment I A 9 m. 

Retirement II A to B. 
Oct. 1, 1890 (26 Stat. 562) See Army I G 3 b (4) (b). «■ 

Office III B 3a (4) (a). fj 

Pardon XV G 2 a. T 

Rank IB lb (1); III A; V C. 

Retirement I B 6 to 7; G 2 b. 

Oct. 1, 1890 (26 Stat. 648) See Desertion V A; V F 12. 

Jan. 13, 1891 (26 Stat. 716) See Military instruction II B 1 a. 

Feb. 9, 1891 (26 Stat. 737) See Insignia op merit II A; F; H; I. 

Feb. 16, 1891 (26 Stat. 763) See Army I G 3 a (2). 

Mar.' 2, 1891 (26 Stat. 824) See Desertion XVI D 1 a. 

Mar. 3, 1891 (26 Stat. 978) See Appropriations I B. 

Mar. 3, 1891 (26 Stat. 1103) See Line of duty II A 3; 3 b. 

Mar. 3, 1891 (26 Stat. 1110) See Public property VI to VII. 

Feb. 23, 1892 (27 Stat. 825) See Laws I B 2. 

Mar. 29, 1892 (27 Stat. 12) See Insignia op merit II G; E; F; H; 1; I. 

July 13, 1892 (27 Stat. 88) See Navigable waters I; III. 

July 16, 1892 (27 Stat. 177) See Government a(!encies I D 3; II A 1. 

Private debts II. 

July 23, 1892 (27 Stat. 260) See Intoxicants II F; III B; B 1. 

July 27, 1892 (27 Stat. 278) See Articles op Wa r GII E 1. 

Gontracts XVII. 

Desertion XVI D 1 a. 

Discipline IX HI; XIII; I; XIV E 3. 

Enlistment I A 9 b; k. 

Office III A 8 b (2). 

July 28, 1892 (27 Stat. 321) See Public property VII B 2 to 3; VIII 

A 4 b. 

Soldiers' Home I G. 
July 30, 1892 (27 Stat. 336) See Laws II A 1. 

Office III A 1 b; b (2); (3) (a); (4). 

Aug. 1, 1892 (27 Stat. 340) See Eight-hour law I to XII. 

Feb. 18, 1893 (27 Stat. 461) See Patents V. 

Feb. 27, 1893 (27 Stat. 478) See Public money II B 4. 

Feb. 27, 1893 (27 Stat. 482) See Appropriations XLVII to XLVIII; 

LII. 

Feb. 27, 1893(27 Stat. 486) See Enlistment I D 2 a. 

Mar. 1, 1893 (27 Stat. 509) See Gontracts V B. 

Mar. 3, 1893 (27 Stat. 715, sec. 5) See < "ivilian empoyees I B 3. 

Nov. 3, 1893 (28 Stat. 7) See Military instruction II B 1 a; e; 2 b. 

Retirement I K 3 a. 

July 31, 1894 (28 Stat. 205, sec. 2) See Retirement I G 3 a to b. 

July 31, 1894 (28 Stat. 208) See Army I B 1 b. 

Aug. 1, 1894 (28 Stat. 216) See Army I B 2 a (4). 

Desertion XVI A 1. 

Enlistment I A 9 f (7) (b); B 2 a; C 1 a; 



c; c (1); d; e (1); D3 c (2); (6); (7); 
(8);(ll^;(12);(18);(18)(e);(^);(/:)[lj. 
Militia V A. 

Aug. 6, 1894 (28 Stat. 235) See Command IV B. 

Aug. 6, 1894 (28 Stat. 236) See Appropriations XXIV. 

Aug. 13, 1894 (28 Stat. 278) See Bonds I A ; P; V G to J. 

Contracts XIV 1; XX G to D. 



I 



APPENDIX II. 1091 

Aug. 13, 1894 (28 Stat. 279) See Bonds V L. 

Aug. 18, 1894 (28 Stat. 338) See Navigable waters V E 3. 

Jail. 12, 1895 (28 Stat. 601) See Army I B 2 h (2). 

Mar. 2, 1895 (28 Stat. 788) See Militia XX A. 

Mar. 2, 1895 (28 Stat. 807) See Bonds II Q; V E. 

Mar. 2, 1895 (28 Stat. 814) See Desertion XVI D 1 a. 

Mar. 2, 1895 (28 Stat. 957) See Discipline XVII A 4 h (1). 

May 2, 1896 (29 Stat. 473) See Insignia op merit I Ala. 

May 28, 1896 (29 Stat. 189) See Army I G 3 b (2) (a) [3] [b]. 

June 3, 1896 (29 Stat. 213) See Appropriations II. 

Contracts XIII E. 

June 3, 1896 (29 Stat. 225) See Appropriations IX. 

Jan. 21, 1897 (29 Stat. 494) Sec Insignia of merit I B. 

Feb. 24, 1897 (29 Stat. 593) See Discharge XIV A 4. 

Volunteer Army II F 1 a (1). 

June 4, 1897 (30 Stat. 50) See Appropriations IX. 

July 19, 1897 (30 Stat. 121) See Appropriations IX. 

Dec. 18, 1897 (30 Slat. 226) See Appropriations XIII. 

Mar. 15, 1898 (30 Stat. 316) See Civilian employees I B 1; 3; 4; IV A; B. 

Apr. 22, 1898 (30 Stat. 361) See Discharge IX A. 

Enlistment I B 2 e. 

Office V A 6 a. 

Rank II B 2. 

Apr. 22, 1898 (30 Stat. 362, eec. 10) See Office IV A 2 d (3). 

Apr. 22, 1898 (30 Stat. 363, sec 13) See Volunteer Army III A 1. 

Apr. 22, 1898 (30 Stat. 363, sec. 14) See Office IV E 2 a (1); V A 4 b; e. 

Apr. 25, 1898 (30 Stat. 364) See War I B 2. 

Apr. 26, 1898 (30 Stat. 365, sec. 6) See Discipline IV B 2 a. 

Pay and allowances I C 6 c (1). 

Rank I B 1 b (1). 

May 11, 1898 (30 Stat. 404) See Militia XVI B. 

May 11 , 1 898 (30 Stat. 405) See Volunteer Army III A 1. 

May 28, 1898 (30 Stat. 421) See Office V A 7 d (2) (a). 

June 8, 1898 (30 Stat. 437) See Appropriations V B. 

June 18, 1898 (30 Stat. 483) See Discipline VIII G 2 b; I 1 d; XIV D; 

XVI E 4 c; 6. 

June 18, 1898 (30 Stat. 484, sec. 6) See Desertion V A; A 1; 1 a; V B 12- 

14 a. 

July 1, 1898 (30 Stat. 628) See Appropriations LV to LVI. 

July 7, 1898 (30 Stilt. 653). See Civilian employees I B 1. 

July 8, 1898 (30 Stat. 722) See Public property VIII A 4 c. 

July 7, 1898 (30 Stat. 721) See Rank I D 3. 

July 8, 1898 (30 Stat. 730) See Appropriations LXIII to LXIV. 

Jan. 12, 1899 (30 SUt. 784) See Enlistment I D 3 d (2) to (5). 

Volunteer Army IV C 1 a (2) to (5). 

Feb. 24, 1899 (30 Stat. 890, sec. 4) See Civilian employees I B 4. 

Mar. 2, 1899 (30 Stat. 977) See Enlistment I B 1 a. 

Mar. 2, 1899 (30 Stat. 978) See Army I E 4. 

Enlistment I B 1 b (1); I D 2 c. 

Mar. 2, 1899 (30 Stat. 979) See Office V A 7 d (2) (a). 

Mar. 2, 1899 (30 Stat. 980) See Volunteer Army IV D 1 a (2) (6) [I'J. 

Mar. 2, 1899 (30 Stat. 981, sec. 17) See Intoxicants I A. 

Mar. 3, 1899 (30 Stat. 1065) See Rank II B 1. 

Mar. 3, 1899 (30 Stat. 1073) See Enlistment I D 3 d (1) to (3). 

Office V A 5a (2). 

Mar. 3, 1899 (30 Stat. 1108) See Public property IV A 2 a. 

Mar. 3, 1899 (30 Stat. 1121) See Navigable waters I. 

Mar. 3, 1899 (.30 Stat. 1151, sec. 9) See Navigable waters III A 1. 

Mar. 3, 1899 (30 Stat. 1151, sec 10) See Navigable waters I B; V; V A; C. 

Mar. 3, 1899 (30 Stat. 1152, sec. 17) See Navigable waters IX B. 

Mar. 3, 1899 (30 Stat. 1154, eec. 19) See Appropriations XXXVIII. 

Navigable waters VII C 1. 
Mar. 3, 1899 (30 Stat. 1154, sec. 20) See Appropriations XXXVIII. 

Navigable waters VII A; C 2. 

Mar. 3, 1899 (30 Stat. 1223) See Appropriations XXXII. 

Mar. 3, 1899 (30 Stat. 1225) See Appropriations XVIII. 

Mar. 3, 1899 (30 Stat. 1324) See Territories III B. 

Mar. 3, 1899 (30 Stat. 1377) See Navigable waters V C 1. 



1092 APPENDIX II. 

May 25, 1900 (31 Stat. 183) See Appropriations XXX. 

May 26, 1900 (31 Stat. 205) See Militia IX J. 

May 26, 1900(31 Stat. 206) See Appropriations III. 

May 26, 1900 (31 Stat. 209) See Retirement II A 4 b (2). 

May 26, 1900 (31 Stat. 211) See Retirement II A 4 b (1) ; c. 

June 6, 1900 (31 Stat. 656, sec. 4) See Army I D 1 a (2) (c). 

June 6, 1900 (31 Stat. 662) .See Militia X D; XVI I 3; 4. 

June 6, 1900 (31 Stat. 321, sec. 26) See Army I B 9. 

June 6, 1900 (31 Stat. 330, sec. 29) See Territories III B. 

Feb. 1, 1901 (31 Stat. 746) See Civilian employees I A 2; C 3. 

Feb. 2. 1901 (31 Stat. 748) See Army I G 3 b (1). 

Office V A 7 d (2) (b). 

Rank I CI. 

Retirement I B 4 a. 

Feb. 2, 1901 (31 Stat. 748, sec. 1) See Office III E 1. 

Feb. 2, 1901 (31 Stat. 749, sec. 6) See Army I G 2 b (2) 

Feb. 2, 1901 (31 Stat. 751) See Bonds II H. 

Feb. 2, 1901 (31 Stat. 751, sec. 15) See Army I G 3 a (4) (a) [1]. 

Feb. 2, 1901 (31 Stat. 751, sec. 16) See Army II G 1 a. 

Office III D 1' 2 a. 

Feb. 2, 1901 (31 Stat. 753, sec. 18) See Army I G 3 d (4) (a); (d). 

Feb. 2, 1901 (31 Stat. 753, sec. 19). See Absence I D. 

Army I G 3 d (6) (a) [2]. 

Feb. 2, 1901 (31 Stat. 754, sec. 22) See Army I G 2 a (1). 

Feb. 2, 1901 (31 Stat. 755, eec. 26) See Army I B 2 a (1). 

Office III D 1 d; 3. 

Feb. 2, 1901 (31 Stat. 755, sec. 27) See Office III D 3. 

Feb. 2, 1901 (31 Stat. 756, sec. 30) See Discharge VI C 1; 2. 

Feb. 2, 1901 (31 Stat. 756, sec. 32) See Office III B 3 a (4) (a); (b). 

Feb. 2, 1901 (31 Stat. 757, sec. 34) See Retirement I F; II A 4 c. 

Feb. 2, 1901 (31 Stat. 757, sec. 36) See Command V B 4. 

Discharge VI D 6. 

Pay and allowances I C 5 c. 
Feb. 2, 1901 (31 Stat. 758, sec. 38) See Intoxicants II A 1; 2; C; D; IV. 

Militia XV. 

Feb. 15, 1901 (31 Stat. 790) See Public property VI D 2. 

Feb. 26, 1901 (31 Stat. 810) See Military instruction II B 1 f. 

Mar. 2, 1901 (31 Stat. 895) See Appropriations XLIV to XLV. 

Mar. 2, 1901 (31 Stat. 902) See Army I G 3 a (2). 

Mar. 2, 1901 (31 Stat. 903) See Absence I B 1 i. 

Mar. 2, 1901 (31 Stat. 905) See Army I G 3 d (8) (c) [11. 

Contracts IV A. 

Mar. 2, 1901 (31 Stat. 911) See Army I D 3 b (2) (a). 

Mar. 2, 1901 (31 Stat. 914) See Office III E 3. 

Mar. 2, 1901 (31 Stat. 950) See Discipline X I 6. 

Mar. 2, 1901 (31 Stat. 951) See Articles of War LXXXI II; 

LXXXVI B 1. 

Mar. 3, 1901 (31 Stat. 1J68) See Appropriations V B. 

Feb. 14, 1902 (32 Stat. 12) See Appropriations III; LIX to LX. 

May 13, 1902 (32 Stat. 198) See Appropriations XVI. 

Juiie 13, 1902 (32 Stat. 342) See N.wigable waters X A 1. 

June 13, 1902 (32 Stat. 373) See Public property I A 4. 

June 13, 1902 (32 Stat. 373, sec. 5) See Navigable waters X F 2; 4. 

ARMYlB2e(l). 

June 30, 1902 (32 Stat. 507) See Appropriations X. 

June 30, 1902 (32 Stat. 516) See Appropriations XXVIII. 

July 1, 1902 (32 Stat. 615) See Militia XVI E. 

July 1, 1902 (32 Stat. 629) See Discharge XIV D 1 ; 2 ; 4. 

Jan. 21, 1903 (32 Stat. 775) See Insignia op merit III B 1. 

Militia IV B; VI CI c (1); XVIII A. 

Jan. 21, 1903 (32 Stat. 775, sec. 3) See Militia III to IV; IX A 2 a; XVI A; 

XXI 

Jan. 21, 1903 (32 Stat. 776, sec. 4) See Militia I A; D; VA. 

Jan. 21, 1903 (32 Stat. 776, sec. 9) See Militia II B. 

Jan. 21, 1903 (32 Stat. 776, sec. 12) See Militia XIV A. 

Jan. 21, 1903 (32 Stat. 777, sec. 13) ...See Militia XII A. 



APPENDIX II. 1093 

Jan. 21, 1903 (32 Stat. 777, sec. 14) See Militia VI A 2 a; B 1 a to e (5); C 1 

c (3); 2 b; c; VII F; X A 2; C; XI 
A; B; D; E; Q; XVI E; XVIII A; B. 

Jan. 21, 1903 (32 Stat. 777, sec. 15) See Militia II B; VI B 1 e (9); 2 b; c; e; 

h; i; k; 1; XI A; C; E; L; XVIII B. 

Jan. 21, 1903 (32 Stat. 778, sec. 16) See Militia VI A 1. 

Jan. 21, 1903 (32 Stat. 778, sec. 17) See Militia IX A 1; B 1; XIII B; XVI 1 1. 

Jan. 21, 1903 (32 Stat. 778, sec. 18 See Militia VI D 1. 

Jan. 21, 1903 (32 Stat. 779, sec. 20) See Militia VI A 2 b; c. 

Jan. 21, 1903 (32 Stat. 779, sec. 21) See Militia VI B le (9); XII B. 

Jan. 21, 1903(32Stat. 779, sec. 23) See Militia VI A 1; XVII A. 

Jan. 30, 1903 (32 Stat. 783) See Army II G 1 a; 2 a (1). 

Command I C; V B 5. 

T^P'RR.TTOR.TFS TV o *^ * 2 9, 

Feb. 14, 1903 (32 Stat. 830) See Office III D 1 b; c72 a.' 

Mar. 2, 1903 (32 Stat. 927) See Appropriations XXII. 

Mar. 2, 1903 (32 Stat. 932) See Militia VI A 2 b. 

Mar. 2, 1903 (32 Stat. 936) See Contracts VII G 2. 

Mar. 2, 1903 (32 Stat. 942) See Militia XII A; B; XVI I 2. 

Mar. 2, 1903 (32 Stat. 952) See Public money IX. 

Apr. 21, 1904 (33 Stat. 225) See Retirement I K to L. 

Apr. 21, 1904 (33 Stat. 226) See Military instruction II B 2 e (1). 

Apr. 23, 1904 (33 Sta,t. 264) See Militia VI A 2 b ; VII C. 

Retirement I C to D; K 2 to 3; II A 4 
b;b(l);c. 

Apr. 23, 1904 (33 Stat. 265) See Militia VI B 2 j; m. 

Apr. 23, 1904 (33 Stat. 269) See Desertion V A 1 a. 

Apr. 23, 1904 (33 Stat.'272) See Articles of War LII B. 

Apr. 23, 1904 (33 Stat. 274) See Insignia of merit I A to B. 

Militia XVIII A. 

Apr. 27, 1904 (33 Stat. 391) See Territories III G 1. 

Apr. 28, 1904 (33 Stat. 496) See Appropriations XXVIII. 

Navigable waters XI D. 

Apr. 28, 1904 (33 Stat. 518) See Army I G 3 b (2) (a) [3] [e]. 

Jan. 5, 1905(33 Stat. 599) See Red Cross I A; II B. 

Feb. 3, 1905 (33 Stat. 663) See Contracts VII B. 

.Feb. 20, 1905 (33 Stat. 725) See Flag II. 

Feb. 24, 1905 (33 Stat. 811) See Contracts XX C 5. 

Mar. 2, 1905 (33 Stat. 827) See Appropriations XI. 

Mar. 2, 1905 (33 Stat. 831) See Retirement I K 3 a. 

Mar. 3, 1905 (33 Stat. 845) See Appropriations XXX. 

Mar. 3, 1905 (33 Stat. 850) See Office III E 3. 

Rank II C 1. 

Mar. 3, 1905 (33 Stat. 860) See Contracts VII F 2. 

Mar. 3, 1905 (33 Stat. 986) See Militia IX B 1. 

Mar. 3, 1905 (33 Stat. 1257) See Contracts XIII B. 

Feb. 27, 1906 (34 Stat. 49) See Contracts XIII B. 

Mar. 9, 1906 (34 Stat. 56) See Appropriations LVII to LVIII. 

Civilian employees XVI C. 

Contracts VII C. 

Public property IV B. 

Mar. 23, 1906 (34 Stat. 84) See Navigable waters I. 

June 12, 1906 (34 Stat. 240) See Appropriations X; XI. 

Army I G 3 b (2) (a) [3] [f]. 

June 12, 1906 (34 Stat. 245) See Militia VI A 2 b. 

June 12, 1906 (34 Stat. 246) See Militia VI A 2 a. 

June 12, 1906 (34 Stat. 249) See Militia VII C. 

June 12, 1906 (34 Stat. 252) See Militia XI I. 

June 12, 1906 (34 Stat. 255) See Contracts XIII C. 

June 12, 1906 (34 Stat. 256) See Army I G 3 d (8) (d). 

June 12, 1906 (34 Stat. 258) See Contracts VII E to F; XVI G. 

June 21, 1906 (34 Stat. 386) See Navigable waters I. 

June 22, 1906 (34 Stat. 449) See Militia VI A 2 a; Clc(l); g; 2 a; VII 

A; IXB 1; D;E;G; H; XC,E;XIN. 

June 22, 1906 (34 Stat. 450, sec. 3) See Militia VIII A. 

June 25, 1906 (34 Stat. 455) See Army I G 3 b (4) (6) (c). 

June 28, 1906 (34 Stat. 836) See Enustment I D 3 e (1). 



1094 APPENDIX II. 

June 29, 1906 (34 Stat. 596, sec. 4) See Enlistment I B 1 b (2). 

Alien II. 

June 29, 1906 (34 Stat. 621) See Insignia of merit I E 2. 

June 29, 1906 (34 Stat. 626) See Navigable waters V H. 

June 30, 1906 (34 Stat. 744) See Appropriations IX. 

June 30, 1906 (34 Stat. 750) See Militia XI Q. 

June 30, 1906 (34 Stat. 764) See Appropriations II. 

Jan. 25, 1907 (34 Stat. 861) See Militia III D. 

Office III C 1. 

Mar. 2, 1907 (34 Stat. 1073) See Bonds I N. 

Mar. 2, 1907 (34 Stat. 1154) See Militia XVIII B. 

Mar. 2, 1907 (34 Stat. 1158) See Appropriations LIV to LV. 

Mar. 2, 1907 (34 Stat. 1166) See Pay and allowances II A 2 b (1) (a). 

Mar. 2, 1907 (34 Stat. 1167) See Pay and allowances II A 1 to 2. 

Mar. 2, 1907 (34 Stat. 1175) See Militia XII A. 

Apr. 23, 1908 (35 Stat. 66) See ARMYlG3d(2)(a);(6);(3)(a);(6);(c)[4]. 

Rank I B 1 c (2) (b). 
Apr. 23, 1908 (35 Stat. 67) See Army I G 3 d (4) (a). 

Discharge XVII B. 

Retirement I B 6 c (4); 7 a. 

Apr. 30, 1908 (35 Stat. 570) See Appropriations XVI. 

May 11, 1908 (35 Stat. 106) See Appropriations X. 

May 11, 1908 (35 Stat. 108) See Gratuity I to II. 

Militia XI F. 

Pay and allowances I B 7 b; II A 
2 d (1) (a). 

Retirement I K 4. 
May 11, 1908 (35 Stat. 109) See Discharge X B. 

Enlistment I B 2 b; b (1). 
May 11, 1908 (35 Stat. 110) See Absence II B 9. 

Army bands I A 6; B 1; C 1 to 4; D 3. 

May 11, 1908 (35 Stat. Ill) See Army I G 3 d (5) (o). 

May 11, 1908 (35 Stat. 119) See Retirement I K 5. 

May 11, 1908 (35 Stat. 121) See Appropriations XXVIII. 

May 11, 1908 (35 Stat. 122) See Appropriations XLV to XLVI. 

May 11, 1908 (35 Stat. 124) See Militia III D. 

May 11, 1908 (35 Stat. 572) See Appropriations XVI. 

May 22, 1908 (35 Stat. 244, sec. 4) See Army I B 2 g. 

May 27, 1908 (35 Stat. 392, sec. 4) See Army I G 2 a (1); (1) (a). 

Office III A 1 c (1). 

May 27, 1908 (35 Stat. 399) See Militia I A; C; E; III B. 

May 27, 1908 (35 Stat. 399, sec. 3) See Militia IX A 2 a. 

May 27, 1908 (35 Stat. 402 sec. 9) See Militia VI B 2 b. 

May 27, 1908 (35 Stat. 403) See Militia VI A 2 c. 

May 30, 1908 (35 Stat. 556) See Civilian employees XII A; B to C. 

Claims XI; XII F. 

Feb. 18, 1909 (35 Stat. 629) See Militia XVI H. 

Feb. 18, 1909 (35 Stat. 629, sec. 11) See Militia XVI D. 

Feb. 18, 1909 (35 Stat. 631, sec. 20) See Militia XVI C. 

Feb. 18, 1909 (35 Stat. 036, sec. 76) See Militia XVI D. 

Feb. 24, 1909 (35 Stat. 645) See Civilian employees XII A. 

Mar. 3, 1909 (35 Stat. 735) See Gratuity I B to II. 

Mar. 3, 1909 (35 Stat. 737) See Retirement I B 6 c (4); 7 to 8. 

Mar. 3, 1909 (35 Stat. 742) See Militia VI A 1. 

Mar. 3, 1909 (35 Stat. 747) See Appropriations LXV to LXVI. 

Mar. 3, 1909 (35 Stat. 751) See Retirement I B 4 a. 

Mar. 3, 1909 (35 Stat. 836) See Retirement I K 2 e. 

Mar. 4, 1909 (35 Stat. 1006) See Appropriations XII. 

Mar. 4, 1909 (35 Stat. 1027, sec. 10) See Appropriations V B. 

Mar. 4, 1909 (35 Stat. 1090, sees. 13 and 14) . See Army II K 1 a; b. 

Mar. 4, 1909 (35 Stat. 1096, sec. 36) See Desertion XXII A. 

Aug. 5, 1909 (36 Stat. 122) See Appropriations X; XI. 

Mar. 23, 1910 (36 Stat. 241) See Bonds V L. 

Mar. 23, 1910 (36 Stat. 244) See Absence I B 1 g (2). 

Mar. 23, 1910 (36 Stat. 245) See Appropriations LVI to LVII. 

Mar. 23, 1910 (36 Stat. 253) See Pay and allowances I C 6 b (5). 

Mar. 23, 1910(36 Stat. 255) See Pay and allowances II A 2 a (2) (6). 

Apr. 19, 1910 (36 Stat. 312) See Army I D 3 b (2) (a). 

June 17, 1910 (36 Stat. 531, sec. 4) See Contracts IV B. 



APPENDIXES II AND III. ' 1095 

June 23, 1910 (36 Stat. 593) See Navigable waters I; IX A 2. 

June 23, 1910 (36 Stat. 604).. See Red Cross I A; II B; 0. 

June 25, 1910 (36 Stat. 635) See Navigable waters X E 1. 

June 25, 1910 (36 Stat. 851) See Patents III A; VII C. 

June 25, 1910 (36 Stat. 725) See Appropriations III. 

June 25, 1910 (36 Stat. 788) See Appropriations IX. 

June 25, 1910 (36 Stat. 723) See Appropriations LXII to LXIII. 

Jan. 19, 1911 (36 Stat. 894) See Desertion XX D. 

Fe)). 24, 1911 (30 Stat. 1457) See Appropriations XIX. 

Feb. 27, 1911 (36 Stat. 957) .See N.wigable waters X B 1 a. 

Mar. 1, 1911 (36 Stat. 963) See Uniform I A 1. 

Mar. 3, 1911 (36 Stat. 1047) See Appropriations XVII. 

Mar. 3, 1911 (36 Stat. 1048) See Desertion V A. 

Mar. 3, 1911 (36 Stat. 1058) See Rank II A. 

Mar. 4, 1911 (36 Stat. 1343) See Contracts XXIII H. 

Mar. 4, 1911 (36 Stat. 1452) See Civilian employees XII A. 



Appendix III. 

REFERENCES TO THE REVISED STATUTES. 

Sec. 183 See Office III A 8 b (1). 

Sec. 189 See Army I B 5 a. 

Cl.«msXIIN. 

Discipline III C 2 b. 

Sec. 214 See Appropriations XXXIII. 

Sec. 216 See Contracts Ij I. 

Sec. 21S See War I C 6 c (3) (c) [2]. 

Sec. 224 See Discharge XIV B 4 ; D 1. 

Laws I B 2. 
Sec. 355 See Militia VI B 1 c. 

Navigable waters X E. 

Public property II A; A 6: V; V E 1 a 
(2); V G 2. 

Sees. 356 to 367 See Army I B 5 a. 

Sec. 365 See Claims XII M;N. 

Sec. 366 See Claims XII N . 

Sec. 848 See Discipline X I 5. 

Sec. 860 See Discipline V B. 

Sec. 877 See Territories II A. 

Sec. 882 See Claims XI. 

Discipline XI A 17 a (2) (a) [1] [b]. 

Sec. 911 See Territories II A. 

Sec. 952 See Pay and allowances I B 5 a. 

Sec. 1014 SeeCoMM.\ND V A3 c (1). 

Sec. 1045 See Articles of War CIII E. 

See. 1059 See Claims X; XII Q. 

Sec. 1076 See Army I B 2 c (1). 

Sec. 1094 See Army I D 3 a. 

Sec. 1097 See Army I B 2 f. 

Sec. 1098 See Army I B 2 f. 

Sec. 1099 See Army I E 4. 

Sec. 1102 See Army I E 4. 

Laws II A 1 d. 

Sec. 1104 See Enlistment I A 12. 

Sec. 1106 See Army I E 4. 

Sec. 1108 See Enlistment I A 12. 

Sec. 1111 See Rank I A 1. 

Sec. 1114 See Articles op War LXXIII A. 

Sec. 1116 See Enlistment I B 1 a; D 1. 

Sec. 1116 to 1J18 See Enlistment I A9f (5); B 3 a. 

Sec. 1117 See Enlistment I A 9 c (1); B 1 a; 1 b (3). 

Sec. 1118 See Enlistment I A 9 c (2) ; B 3 b. 

Sec. 1136 See Appropriations XXVIII. 

Sec. 1137 See Retirement III. 

Sec. 1142 See Army I E 2 a. 

Sec. 1153 See Public money V. 



1096 ' APPENDIX III. 

Sec. 1153 See Command III C. 

Sec. 11*62 See Enlistment I A 10. 

Sec. 1167 See Army I G 3 b (4) (a). 

Military instruction II B 2 c. 

Sec. 1191 See Bonds I O; IIG; J;L; V A. 

Sec. 119!) See Dlscipline XIII A. 

Sec. 1202 ...See Articles of War LXXXVI Bib. 

Discipline IV B 4; 4 a; X K 3. 

Sec. 1203 See Discipline IV B 2. 

Sec. 1211 See Rank I V B. 

Sec. 1212 See Retirement I F. 

Sec. 1216 See Insignia op merit II C; E; F; II; I. 

Sec. 1219 See Rank II A 2; B 1. 

Sec. ]222 See Army I E3an);b;b (1). 

Militia III F;' VI A2'b. 

Office IV A 2 to 3. 

Sec. 1223 See Retirement I G 2 f ; 3 a (2) (a). 

Sec. 1224 See Office IV B to C. 

Sec. 1225 See Army II C 1. 

Bonds IVA;L. 

Military instruction II B 1 a; c; d; 
2 a; b. 

Retirement I K 3 to 4. 

Sec. 1228 ....See Office III Fl; IVE 1 b. 

Sec. 1229 See Desertion XX D ; E ; F. 

Discharge XX B. 

Enlistment I B 3 b. 

Office IV E 2 a. 
Sec. 1230 See Desertion XX F. 

Discipline III B 2 a; b; XIV H 2. 

Sec. 1231 See Pay and allowances I C 6 b (2). 

Sec. 1232 See Army I C 1. 

Sec. 1237 See Private debts IX. 

Sec. 1241 See Navigable waters X F 3. 

Public property IX A to B. 

Tax III M. 

Sec. 1242 See Pay and allowances II A 3 a (4) (a) 

Sec. 1243 See Army I G 3 a (2) . 

Retirement I A 1 a; b. 

Sec. 1244 See Army I G3 a (2). 

Sec. 1246... See Retirement I B 6 b (2). 

Sec. 1246 to 1252 See Retirement I B 1 d (2). 

Sec. 1248 See Retirement I B 1; 1 b (1) (6); c (3); 

d(l). 

Sec. 1249 See Retirement I B 1 b (1) (a); (6). 

Sec. 1251 See Retirement I B 1 a (1); 3 a. 

Sec. 1252 See Discipline II D 3. 

Retirement I B 3 a. 

Sec. 1253 See Retirement I N to O. 

Sec. 1255 See Retirement I B 6e (2). 

Sec. 1256 See Retirement I G 2 b. 

Sec. 1257 See Retirement I B 6e (2). 

Sec. 1259 See Retirement I G. 

Sec. 1262 See Pay and allowances I B 6 a. 

Sec. 1265 See Absence IBlg(2)(a);I M (1); II A 2. 

Sec. 1270 See Pay and allowances I B 7 a (1). 

Sec. 1275 See Retirement I N 3. 

Sec. 1282 See Enlistment I D 1. 

Sec. 1284 See Enlistment I D 1. 

Sec. 1285 1 See Insignia of merit II I. 

Sec. 1287 See Pay and allowances I C 6 a; b (2). 

Contracts XIII A. 

Sec. 1288 See War I C 11 d (1). 

Sec. 1290 See Pay and allowances III C 2 c (1) ; 

(2); (4). 

Sec. 1296 See Insignia of merit III B 1. 

Pay and allowances II A 3 a (4) (a) 



APPENDIX III. * 1097 

Sec. 1298 See Pay and allowances II A 3 a (4) (d) 

[i]M;[t]. 

Sec. 1302 See Pay and allowances II A 3 a (4) (d) 

[1] [a]. 

Sec. 1303 See Pay and allowances II A 3 a (4) (a). 

Sec. 1304 See Claims XII G. 

Public property I F 4. 
Sec. 1305 See Appropriations XXXIII. 

Desertion XIV E. 

Sec. 1308 See Appropriations XXXIII. 

Sec. 1315 See Army I D 1 a (2); (2) (a) [1]; [2J [a]; (b) 

[i];(c). 

Sec. 1317 See Army I D 1 a (1); (2); (2) (b) []]; d. 

Sec. 1318 See Army I Dlb (1). 

Sec. 1325 See Army I D 1 d (2) ; (3) ; 2 b. 

Sec. 1330 See Absence I B 1 g (1); (2). 

Sec. 1343 See War I C 3 d; 8 a (3) (e). 

Sec. 1345 See Eight-hour law VII. 

Sec. 1351 See Discipline XVII A4g(l); (2); (3). 

Sec. 1352 See Discharge II B 2 a. 

Enlistment I D 3 c (6); (14). 

Sec. 1547 See Laws II A 1 a. 

Sec. 1642 See Militia I C; E. 

Sec. 1658 See Articles of War LX E 2. 

Sec . 1661 See Appropriations V B . 

Militia II A 1; III B; VI A'2 c; B 1 e 
(5);(6);Clb;c(l);(3);d;f;h;j;2a;c 
VII A; B; F; IX B 1; E; X E; XI F 
H;M;N; XIIB; XIVB; XVI I; I 3 
XVIII A. 
Sec. 1757 See Army I G 3 d (4) (c). 

Office III A 6 a (1). 

Sec. 1758 See Office III A 8 b (2). 

Sec. 1763 to 1765 See Civilian employees X A. 

Sec. 1764 See Civilian employees X C. 

Sec. 1765 See Army I G 3 b (4) (d). 

Civilian employees X C. 
Sec. 1766 See Government agencies I D 3. 

Pay and allowances III B 2. 

Public money IV to V. 

Sec. 1791 See Flag I. 

Sec. 1792 See Flag I. 

Sec. 1860 See Office IV A 2 d (2). 

Sec. 1876 See Claims XII M. 

Sec. 1892 See Articles op War XCVII C. 

Sec. 1910 See Territories II A. 

Sec. 1996 and 1998 , ...See Desertion X A; XIV B; XV E 1: 

XV F. 

Enlistment. 

Discipline X A 1. 

Sec. 1999 See Desertion IX M. 

Sec. 2062 See Army II CI. 

Sec. 2139 See Intoxicants II F; III A 1; B. 

Territories III E. 

Sec. 2140 See Intoxicants III C 2; D 1. 

Sec. 2147 See Army II C. 

Sec. 2150 See Army II C; D. 

Intoxicants III C 1. 

Sec. 2151 See Army II C. 

Sec. 2152 See Army II C. 

Sec. 2165 See Alien III. 

Sec. 2166 '. See Militia XIX A. 

Office III A 1 b (1). 

Discharge VI D 4. 

Sec. 2190 See Army II CI. 

Sec. 3473 See Public money IX. 

Sec. 3474 See Public money IX. 



1098 * APPENDIX III. 

Sec. 3475 See Public money IX. 

Sec. 3476 See Public money IX. 

Sec. 3477 See Contracts XIV to XV. 

Sec. 3480 See Claims XII A. 

Sec. 3483 See War I C 6 c (2). 

Sec. 3617 See Public money I to II; XI. 

Sec. 3618 See Public money I to II; II a; XI. 

Public property IA4;IXA2e; 
3 to 4. 

Sec. 3620 See Public money II A; III to IV. 

Sec. 3621 See Appropriations VII. 

Sec. 3622 See Articles of War LXII C 3. 

Sec. 3639 See Appropriations VII. 

Sec. 3648 See Contracts XII. 

Sec. 3651 See Contracts LII. 

Public money VIII. 

Sec. 3678 See Appropriations II; IV; VI. 

Sec. 3679 See Appropriations II; IX. 

Contracts XIII A; B; E. 

Sec. 3689! See Soldiers' Home I F. 

Sec. 3690 Sec Appropriations V to VI. 

Militia X A 1. 

Sec. 3709 See Contracts III to IV; VI A; VII A 1: 

13; C;D; Gl;3;H. 
Sec. 3716 See Discipline XVII A 4 g (2). 

Laws 1 B 5. 
Sec. 3732 See Contracts XIII B; C; E. 

Appropriations II; IX. 
Sec. 3733 See Appropriations II; IX. 

Contract XIII D. 
Sec. 3736 See Appropriations III. 

Navigable waters X D. 

Public Property II A to B; IV A 1 a(] ). 
Sec. 3737 See Articles of War LXII D. 

Contracts XIV TO XV. 

Public property VII A 1. 

Sec. 3738 See Eight-hour law I; IX. 

Sec. 3739 See Contracts XV to XVI. 

Sec. 3740 See Contracts XV to XVI. 

Sec. 3741 See Contracts XV to XVI. 

Sec. 3742 See Contracts XV to XVI. 

Sec. 3744 See Contracts XI A; C; XVI; XVII; 

XVIII. 

Public proprety VII A 6. 
Sec. 3745 See Contracts XVII. 

Office III A 8 b (2). 
Sec. 3748 See CIommand V A 3 e. 

Militia II D. 

Pltblic property IX B 2. 

Sec. 3828 See Contracts V to VI . 

Sec. 4661 See Public property V G 3. 

Sec. 4687 See Army II C 1. 

Sec. 4700 See Line op duty II A 2 a (4) (a) [2]. 

Sec. 4745 See Soldiers' Home I E. 

Sec. 4747 See Pensions II A. 

Line op duty II A 3; 3 a (2); b. 

Sec. 4788 See Line op duty II A 3 b. 

Sec. 4790 See Line op duty II A 3 b. 

Sec. 4824 See Soldiers' Home I A. 

Sec. 4835 See Soldiers' Home II. 

Sec. 4843 See Insanity IA;A1;2;3;B1;2;C. 

Sec. 4852 See Insanity I A 2. 

Sec. 4870 See Public property IV A 1 a (1). 

Sec. 4870 to 4872 See Public property IV A 1 a. 

Sec. 4871 See Public property IV A 1 a(l); (2). 

Sec. 4872 See Public property IV A 1 a (2) ; V A. 



APPENDIXES III AND IV. 1099 

Sec. 4874 See Public property IV A 3 a. 

Sec. 4878 See Public property II A 6 c; IV A 1 b; 4 a. 

Sec. 4881 See Public property IV A 3 b. 

Sec. 5281 to 5291 See Army II K 1 a. 

Sec. 5287 See Army II K 1 c. 

Sec. 5297 See Army II D; F 1. 

Sec. 5298 See Army II D; F 1; I G. 

Militia I E. 

Sec. 5299 See Army II F 1; I G. 

Sec. 5300 See Army II I 1. 

Sec. 5339 Sec Discipline II D 11a. 

Sec. 5339 to 5342 See Discipline VIII D 4. 

Sec. 5388 See Public property III H 3. 

Sec. 5391 See Public property V H 1 b. 

Sec. 5392 See Enlistment I A 2 a. 

Sec. 5438 See Army I B 5 b. 

Militia II D. 

Pay and allowances II A 3 a (4) (a). 

Sec. 5439 See Desertion XXII A. 

Sec. 5455 See Desertion III E. 

Sec. 5488 See Appropriations VII. 

Articles op War LXII C 2. 

Public money II A. 
Sec. 5490 See Appropriations VII. 

Discipline XII A 12 b. 

Sec. 5491 See Articles of War LXII C 3. 

Sec. 5495 See Articles of W.\r LX A 4. 

Sec. 5497 See Appropriations VII. 

Sec. 5498 See Claims X. 

Retirement I G 2 a; II B 2. 

Sec. 5586 See War I C 6 c (3) (6) . 

Sec. 559G See Public property IV A 1 a. 

Laws I A 3. 



Appendix IV. 
REFERENCES TO THE ARTICLES OF WAR. 

Art. 2 See Enlistment I A 2; 2 a. 

Office III A 8b (1). 
Art. 3 See Articles of War III A. 

Discipline XII B 3 i. 

Enlistment I A 9 f (5). 
Art. 4 See Articles of War XLVIII B. 

Discharge III D; XI B 1; XIII E 2: 
XIV A 1; XVDlb; XX D 2. 

Retirement II F 3. 

Art. 6 See Discipline XII B 3 i. 

Art. 8 See Articles of War VIII A. 

Discipline XII B 3 i. 

Art. 11 See Absence I C 4 a. 

Art. 13 See Discipline XII B 3 i. 

Art. 14 See Discipline XII B 3 i. 

Art. 15 See Discipline XII B 3 i. 

Art. 17 See Pay and allowances II A 3 a (4) (a). 

Articles ofW^ar XVII; LXII. 

Words and phrases, "Accouter- 

MENTS." 

Art. 18 See Discipline XII B 3 i. 

Art. 19 See Articles of War XIX. 

Art. 20 See Articles of War XXI A; XXII A. 

Discipline II D 13 a; 17 a. 



% 



1100 APPENDIX IV. 

A-rt. 21 See Articles of War XXI; XXII A; 

LXXXIII B 1; XCVII A; E; CII C. 

Discipline II D 14 a; 20; VI G 3; 
VIII D 4; XII A 6 c; 8 a (1); (2); 
(3); (3) (a); XVI E 2. 

Private debts VII. 

Words and Phrases, "Officer." 
A.rt. 22 See Articles of War XXII; XCVII A 

Discipline XII A 6 c; XIV E 9 d 
(1) (b). 
Art. 24 See Army II D. 

Articles op War XXIV. 

Command VI A 1 a. 

Discipline I D 1. 

Art. 25 See Articles op War XXV. 

Art. 26 See Articles of War XXVI. 

Discipline XII B 3 i. 

Art. 27 See Discipline XII B 3 i. 

Art. 28 ■ See Discipline XII B 3 i. 

Art. 29 See Articles of War XXIX. 

Art. 30 See Articles of War XXX. 

Discipline XVI A 1; D. 
Art. 32 See Absence II B 2; 4 a (1); 7; 8 a. 

Articles of War XXXII; CII D. 

Art. 33 See Articles op War XXXII A; B. 

Art. 38 See Discipline V D 5; XI A 8; XII A 6 c; 

9a;B2d;3i; XIVE9a(14). 

Articles of War XXXVIII. 
Art. 39 See Articles op War XXXIX. 

Discipline XII A 10 a. 
Art. 40 See Articles of War XL. 

Discipline XIV E 9 a (12) 
Art. 42 See Articles OF War XLII; CA; CII D. 

Discipline XV F 2. 

Art. 45 See Articles of War XLT. 

Art. 46 See Articles op War XLVI . 

Art. 47 See Articles op War L A. 

Art. 48 See Articles of War XLVIII; CIII C: 

F4. 

Discharge XIII B 1. 
Art. 50 See Discipline XII B 3 i. 

Articles of War L. 

Desertion IX I; XII A 1. 

Art. 51 See Articles op War LI. 

Art. 52 See Articles op War LII. 

Discipline VI G 2. 

Art. 53 See Discipline VI G 2. 

Art. 54 See Articles op War LIV. 

Discipline XII B 3 i; XVII B 1 f . 
Art. 58 See Articles op War LVIII; XCVII D. 

Discipline II D 15 a; XII B 2 i- XIV 
E 9 a (13) (a); (6). 
Art. 59 See Articles op War LIX; CII I. 

Command V B 2 a; b. 

Discipline XII B 3 i. 

Art. 60 See Articles of War XVII B: LX; LXII 

B; XCVII B; CIII C. 

Discharge XXII A; B. 

Discipline II A 1 b; II D 16 a; b; V D 
2 c; VIII 1 1 c; XI A 18; XII A 5 b. 
Art. 61 See Army I A 2 a (2). 

Articles op War LXI; LXII D. 

Discipline II D 17 a; 18 a; 19; V D 2 
c; H 5; XII A 6 b; c: 11 a; B 3 i: 
XIV E 9 a (14). 

Private Debts V. 



APPENDIX IV. 



1101' 



Art. 62 See Arji y I A 2 a (2 ) . 

AjmcLEs OF War XVII B; XXI B; D; 
E 1; XXII A; C; XXXII C; LX C; 
LXII; XOVIIE; CII C. 

Discharge XII D 2; XV A 3. 

Discipline II D 3; 4; 6; 13 a; 18 a to d; 
20; VIII D 4; F 1; 2; IX L1;XH1; 
XI A 8; XII A 6 c; 8 a (3) (a); 12 a; 
b;B3b;4b;XVF2; XVIIBla;b. 

Private Debts V. 
Art. 63 See Army I G 3 d (4) (c). 

Articles of War LXIII. 

Art. 64 ..See Discipline VIII B. 

Art. 65 See Articles of War LXII C 17; 18; D; 

LXV. 

Discipline XII B 3 i; XIV E 9 a (14). 

Art. 66 See Articles of War LXVI. 

Art. 71 See Articles of War LXXI . 

Art. 72 See Articles of War LXXII. 

Discipline III B; G 1; XVI C 
Art. 73 See Articles of War LXXIII. 

Discipline III G 1; XVI C 
Art. 75 See Articles op War LXXII A; LXXV. 

Discipline XV C. 
Art. 77 See Articles of War LX E 2; LXXVII. 

Discipline XV H 3. 

Art. 78 See Articles of War LXXVIII. 

Art. 82 See Articles of War LXXXII. 

Discipline XVI B L 
Art. 83 See Articles OF War XXX A; LXXXIII. 

Discipline XIV E 9 c. 
Art. 84 See Articles of War LXII D ; LXXXIV. 

Discipline XV E 1. 

Office III A 8b(l). 
Art. 85 See Articles of War LXII D. 

Discipline VI G 2; XV E 1 . 

Office III A 8 b (1). 
Art. 86 See Articles op War LXXXVI. 

Discipline VII C 2. 
Art. 88 See Articles of War LXXXVIII. 

Discipline VII C 1; XIII C 2. 

Art. 90 See Discipline IV G 2 a; K; X H 2; XIV 

E9a(6). 
Art. 91 See Articles of War Xt'I. 

Discipline XI A 17 c. 
Art. 93 See Articles of War XCIII. 

Discipline X A 4; XIV E 9 a (16). 

Art. 96 See Articles of War XOVI . 

Art. 97 See Articles of War XCVII. 

Desertion X C 1. 

Discipline XIV E 9 a (17). 

Art. 98 See Discipline XII B 3 h. 

Art. 99 See Discharge XX B. 

Office IV E 2 a. 
Art. 100 -. See Articles of War C. 

Discipline XV D 4. 
Art. 102 See Articles of War CII. 

Discipline XII B 1 a (1) (6); XIV K 1. 

Art. 103 See Articles of War XXX B; XLVIII 

F;LXE1;LXIIC6;GIII. 

Desertion Vf 7; 7 a; b;XD; XX E. 

Discipline II D 9; XVI D; XVII A 4 c. 

Retirement I B 1 c (1). 
Art. 104 See Articles of War LXXII A; CIV. 

Discipline IV M; XIV A 1; C; E 3. 



1102 APPENDIXES IV. V. AND VI. 

Art. 106 See Articles of War CVI. 

Discipline XIV H 1 a; 4. 

Office IV E 1 a. 

Art 107 See Articles of War LXXIII A 2. 

Art. 109 See Discipline IV M; XIV A 1; C; XVI 

B 1. 

Office IV E 1 a. 

Art. Ill See Articles of War CXI A. 

Art. 112 See Articles op War CXII. 

Discipline XVII A 4 e. 

Art. 113 See Discipline IV M; XIII A. 

Art. 114 See Army I G 3 a (4) (a) [1]. 

Articles of War CXIV. 

Discipline XIII A. 

Art. 115 See Articles of War GXV. 

Art. 119 See Articles of War CXIX. 

Art. 121 See Articles of War CXXI. 

Discipline XI A 13. 
Art. 122 See Articles op War CXXII. 

Command V B 4. 

Art. 124 See Militia VI B 2 b. 

Art. 125 See Articles op War CXXVII A. 

Art. 126 See Articles of War CXXVI; CXXVII A. 

Art. 127 See Articles of War CXXVI A; CXXVII. 



Appendix V. 

REFERENCES TO TREATIES AND CONVENTIONS OF THE UNITED 

STATES. 

China: Art. 9. Peace protocol signed Sept. 

7, 1901, between China and the Powers 

(S. Doc. No. 357, 61st Cong., pp. 2006- 

2012) See Army. 

Cuba: Art. 3. Treaty with Cuba of May 28, 

1903 (33 Stat. 224S) .See War I C 8 c to d. 

Mexico: Art. 2. Extradition treaty with 

Mexico, Dec. 11, 1861 (12 Stat., 1200) . .See Extradition II A; B. 



Appendix VI. 

REFERENCES TO THE ARMY REGULATIONS, 1910 EDITION. 

Par. 51 See Absence I B1 f. 

Par. 58 See Absence I B1 d. 

Par. 65 See Absence I B 2. 

Par. 75 See Civil authorities I B 1 ; 2. 

Par. 87 See Retirement I I . 

Pars. 106 to 113 See Absence I C 4 a. 

Par. 121 See Desertion V F 2 a (1) ; 7; 18. 

Par. 127 See Desertion VD3;3a;b;c;4;4a;E3;4 

Pars. 127 to 131 See Desertion V E 5. 

Par. 147 See Discharge XI A 2. 

Par. 156 See Discharge XIII E 1. 

Par. 189 See Discipline III C 1 a. 

Par. 195 See Army I G 3 a (1) (a). 

Par. 273 See Army I E 1 b. 

Par. 276 See Army I E 1 b. 

Par. 318 See Government agencies II J 3. 

Par. 321 See Government agencies I D 2; 3. 



APPENDIX VI. 1103 

Par. 331 See Government agencies III B 1; X. 

Par. 351 See Government agencies I A. 

Par. 357 See Intoxicants II B. 

Pars. 493 to 498 See Army II F 1. 

Par. 535 See Contracts XLIX. 

Par. 543 See Contracts XI F. 

Par. 548 See Contracts XI B. 

Par. 558 See Contracts XVI F. 

Par. 575 See Bonds II G ; J. 

Par. 577 See Bonds III E. 

Laws II A 1. 

Par. 581 See Bonds I M 13. 

Par. 583 See Bonds V G. 

Par. 585 See Bonds V K. 

Par. 589 See Bonds II N . 

Par. 603 See Contracts XV to XVI. 

Government agencies I E. 

Par. G63 See Contracts I;. 

Par. 605 See Government agencies II J 7. 

Public money II B 5. 

Par. 690 See Public money I J. 

Par. 691 See Public money I J. 

Par. 694 See Public money X to XI. 

Par. 742 See Eight-hour law III; V. 

Par. 799 See Absence I C 4 a. 

Par. 838 See Claims XL 

Par. 866 See Enlistment B 3 c. 

Par. 869 See Enlistment I A 9 f (7) (a). 

Par. 876 See Enlistment I A 8 b. 

Par. 937 See Discipline I D 1. 

Par. 958 See A rticles op War CXII Ale. 

Par. 970 See Articles of War LIX L 2. 

Par. 977 See Command V A 5. 

Par. 982. Sec Discipline XIV E 9 g. 

Par. 986 See Pay and allowances I A 1 c; C 1. 

Par. 1012 See Discipline V G 5. 

Par. 1013 See Discipline V G 5. 

Par. 1060 See Government agencies II J 10. 

Par. 1224 See Army I G 3 h (3) («) [3]. 

Par. 1241 See Gratuity IV. 

Par. 1281 See Articles of War LXI B 15. 

Par. 1406 See Words and phrases; "reputable 

person." 

Par. 1461 See Appropriations XXIX. 

Par. 1495 See Government agencies VI. 

Par. 1496 See Government agencies VI. 

Par. 1498 Sec Claims VIII . . 

o 



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